Quick quiz:
What was the first count that Umar Farouk Abdulmutallab — the UndieBomber — was found guilty of?
Tag Archives: Umar Farouk Abdulmutallab
Two Years after Missing Abdulmutallab because of a Spelling Variance, Government Missed Tsarnaev because of a Spelling Variance
On the Sunday shows yesterday, House Intelligence Chair Mike Rogers suggested that the government missed Tamerlan Tsarnaev’s trip to Russia in 2012 because he used an alias. This morning, Lindsey Graham explained that the problem was slightly different. Tamerlan’s travel documents misspelled his name.
“He went over to Russia, but apparently, when he got on the Aeroflot plane, they misspelled his name,” Graham, a South Carolina Republican said on Fox television this morning. “So it never went into the system that he actually went to Russia.”
Graham, a member of the Armed Services Committee, said in answer to a follow-up question that he did not know whether Tsarnaev, the 26-year-old terrorist suspect who died early Friday following a shootout with law enforcement, had misspelled his name on purpose.
The FBI “said Aeroflot gave us the information” that Tsarnaev had traveled there, Graham said, though he did not specify when that occurred.
Now, Lindsey doesn’t appear to know whether misspelling was the government’s or Aeroflot’s fault or Tamerlan’s deceit. Assuming Lindsey’s right about the larger point, whatever the source, a misspelling suggests a very different issue than an outright alibi (which would raise questions about the documents Tamerlan used, rather than the tracking of those documents).
Update: At the very end of the Senate Judiciary Committee Immigration hearing, Chuck Schumer said the error arose from Aeroflot typing in Tamerlan’s name incorrectly, so it appears it was not an attempt to deceive by Tamerlan.
Two years before Tsarnaev departed for Russia in January 2012, the government spent a good deal of time reviewing what prevented the government from responding to the several warnings about Umar Farouk Abdulmutallab, the UndieBomber, to prevent him from traveling to the country. One of the problems (though by no means the most serious one), was that the cable conveying warnings from Abdulmutallab’s father spelled his name wrong.
As was widely reported within hours of the failed bombing attempt, Abdulmutallab’s father—a former Nigerian government minister and prominent banker—went to the US embassy in Abuja in November to warn that his son was involved with radical Islamists in Yemen and had broken off contact with his family. The family said they had given US officials extensive information about their son in the expectation that they would “find and return him home.”
In his prepared statement to the House Committee on Homeland Security on January 27, State Department Under-Secretary for Management Patrick Kennedy said: “In the case of Umar Farouk Abdulmutallab, on the day following his father’s November 19 visit to the Embassy, we sent a cable to the Washington intelligence and law enforcement community through proper channels (the Visas Viper system) that ‘Information at post suggests [Farouk] may be involved in Yemeni-based extremists.’”
Kennedy confirmed that all US intelligence agencies received warnings that Abdulmutallab was training with terrorists in Yemen. He noted that the initial diplomatic cable from Abuja misspelled Abdulmutallab’s name.
As I said, that was not the most important problem leading to missed warnings. But it was one identified in the lessons learned period.
Yet it appears likely that one of the potential (if Tamarlan’s trip ends up showing any contact with extremists, which it hasn’t yet) lessons learned here will be one we purportedly learned 3 years ago: that our software needs to be better at using wildcards to identify close but not exact spellings.
We’re already seeing hints that facial recognition may not have served as the miracle solution it often gets sold as. It now appears we might not even have the databases running our watchlist system working as well as it needs to.
Update: Swapped out the Politico version of this report for the BoGlo one, which was more informative and changed the language to reflect the additional information.
Dzhokhar Tsarnaev: The Big Issue Is Not Miranda, It’s Presentment
Particularly given Lindsey Graham’s persistent tweeting yesterday that “the last thing we may want to do is read Boston suspect Miranda Rights,” there was a lot of discussion in the moments after Boston Marathon bombing suspect Dzhokhar Tsarnaev was captured last night about whether he would be read his rights.
At first, there were reports he would be. But then DOJ announced he would not be read Miranda immediately; they would invoke the public safety exception to question him.
“The suspect is en route to the hospital for immediate treatment,” the official tells TPM’s Sahil Kapur. “But we plan to invoke the public safety exception to Miranda in order to question the suspect extensively about other potential explosive devices or accomplices and to gain critical intelligence.”
As of about 40 minutes ago, he had still not been read his rights.
Now, thus far, I’m actually not that worked up about Miranda rights (though I may get there soon). As Orin Kerr explains, the public safety exception is a legally recognized law, and Miranda itself only limits what can be admitted as testimony against Dzhokhar in his trial (I’m betting he’ll plead guilty in any case). The government appears to have so much evidence against him in any case, any confession he makes will likely not be necessary to convict him.
Mind you, as Charlie Savage reported two years ago, the government has been institutionalizing longer delays before they give Miranda warnings, most notably with people they (or foreign proxies) interrogate overseas first, followed by a clean team Mirandized interrogation. And as the reference to “gain[ing] critical intelligence” above suggests, the Obama Administration is stretching the intent of pre-Miranda interrogations to include more substantive interrogation (update: Emily Bazelon also made this point).
But here in the US, the delays on Miranda warnings aren’t that long. The best–quite similar–example is the 2009 UndieBomber, who was interviewed for about 50 minutes under a public safety exception when he was captured. That entire interrogation was deemed admissible and in fact formed a significant part of the opening arguments in his trial (which didn’t get much further than opening arguments before he plead guilty). So the UndieBomber’s case is one reason the Administration is confident they could question Dzhokhar without Mirandizing him at first (though the length of time has gotten far longer than used with the UndieBomber).
There’s a precedent from the UndieBomber I find more troubling though. The judge in that case also allowed the use of UndieBomber’s statements from the hospital after he had been given a fair amount of sedation. While there was a dispute about how much he got and what kind of effect that might have had, conversations he had with a nurse were also used in the opening arguments of the trial. The two issues together — a suspect interviewed without a lawyer after he’s been given serious drugs, both of which will be apply to Dzhokhar, as well — is troubling on legal, humanitarian, and practical grounds. The High-Value Interrogation Group had already been brought in last night, which suggests he may well be asked questions while in precarious medical state.
But the big issue, in my opinion, is presentment, whether he is brought before a judge within 48 hours. In addition to stretching Miranda, the government has also been holding and interrogating suspects for periods — up to two weeks for American citizens and far longer for non-citizens — before they see a judge. Not only does this postpone the time when they will be given a lawyer whether they ask or not (because judges are going to assign one), but it gives the government an uninterrupted period of time to use soft coercion to get testimony and other kinds of cooperation.
In my opinion, two of the most troubling cases like this, both involving naturalized citizens accused of terrorism, are Faisal Shahzad and Manssor Arbabsiar.
The Warsame Model
I’ll have more to say about the unsealing of the Ahmed Warsame guilty plea as the week goes forward.
But for the moment I wanted to note a few details of this story describing how the government plans to use the Warsame case as a model for other alleged terrorists — captured, interrogated under law of war conditions for months, and then clean-teamed by the FBI for prosecution in US civilian courts.
Family affairs?
First, note the terse comment from Warsame’s attorney:
Priya Chaudhry, an attorney for Warsame, said she could not comment on his cooperation. She said she was “working very hard to keep his family safe,” adding that the U.S. government was helping.
The impression I’ve gotten from my scant access to the coverage of this case is that this concept — our promise to keep Warsame’s family safe as one reason he cooperated — has been interpreted as keeping the family safe from al Qaeda associates. And the plea agreement actually talks about the Witness Security Program, suggesting Warsame’s family could be resettled in the US or elsewhere in exchange for his cooperation. Kudos to us if we in fact used Warsame’s family solely as some guarantee that his cooperation wouldn’t get them killed.
But remember there’s also been an increasing trend of using threats against family members to coerce cooperation from alleged terrorists and the like, from the kidnapping of Khalid Sheikh Mohammed’s kids to the detention of Faisal Shahzad’s family. Given that history, I’d suggest we might ask whether we’re protecting Warsame’s family from al-Shabaab or from the US?
I look forward to learning more about this, because if the US has finally returned to using carrots as well as — or even better, when innocent family members are involved, instead of — threats against the family, that would be a worthwhile development. But in the very recent past — indeed, even since Warsame’s capture — we have preferred to use threats.
Magic Awlaki information
I’m also interested by the timing of the unsealing of the Warsame plea.
The timing of the unsealing may be most closely connected to the sentencing of Mohamed Ibrahim Ahmed, a Somali-Swede who was sentenced to nine-plus years on Wednesday for materially supporting al Shabaab. Warsame would have testified against Ahmed if his case had gone to trial, though that was made clear before Ahmed himself plead guilty last June, so it’s not new information. As Ahmed’s attorney Sabrina Shroff describes, “It’s like you’re using the consigliere as a snitch against the soldier.” But because the revelation of the unsealing and the Ahmed’s sentencing coincided, it provides an easy way for the government to point to tangible intelligence that Warsame had provided, against however minimal a target.
Nevertheless, I wonder if this news flash doesn’t tie to the government’s efforts to lay out a case against Awlaki (and the still promised talk from the President about drones, and presumably Awlaki’s targeting).
If I’m not mistaken, the first we explicitly heard of Warsame implicating AQAP members comes from the NYT Awlaki production, which described Warsame providing intelligence on Samir Khan.
In April 2011, the United States captured Ahmed Abdulkadir Warsame, a Somali man who worked closely with the Qaeda affiliate in Yemen. He was held aboard a naval vessel for more than two months and spoke freely to interrogators, including about his encounters with the former North Carolina man now editing the group’s magazine, Samir Khan.
While the United States had long tracked Mr. Khan, the new details from the Warsame interrogation raised the question of whether another American citizen should be considered for targeting. There was still scant evidence tying Mr. Khan to any specific plot, so the administration left him off the list. But events would not turn out so neatly.
Note what that information amounted to: nothing tying Khan to any plot, still nothing indicating he was operational. Indeed, if Khan had been rendered rather than killed, Warsame’s failure to tie Khan to operations might have counted as exonerating information.
Now, the WaPo story reveals that Warsame also provided intelligence on Awlaki.
He also provided information about Awlaki, who had become a major target for a capture or kill operation after he was tied to an attempt to bring down a commercial aircraft over Detroit. “He was a guy who was in fairly regular contact with Awlaki and talked about his contacts with Awlaki and Awlaki’s patterns of life,” said the former administration official.
But again, neither the WaPo nor the earlier NYT (which relied on information about Warsame’s interrogations) describes information implicating Awlaki. Rather, the WaPo seems to imply Warsame helped to track down Awlaki (remember: Awlaki had a near miss in May 2011, a month after Warsame’s capture).
All that said, I wouldn’t be surprised if we got magical leaks in upcoming days stating that Warsame did provide intelligence against Awlaki in 2011. That would add something to the government narrative they currently utterly lack — any reasonably fresh intelligence against Awlaki at the time he was killed, rather than the 12 and 20-month old and problematic intelligence tied to the toner cartridge and underwear bomb plots. It would also give us something they don’t otherwise have: someone who would have testified against Awlaki.
The NYT case against Awlaki not only had significant holes and slanted coverage, but there are further problems with the Umar Farouk Abdulmutallab intelligence I hope to lay out going forward. Ultimately, just weeks after Awlaki’s death the government went forward with a conspiracy charge against Abdulmutallab but never (as far as we know) indicted the guy they much later claimed was the key driver of that conspiracy, Awlaki. That says something about the confidence they had in the case against Awlaki even as they killed him, at least as it related to the underwear bomb plot.
Which is why, if Warsame did provide more viable intelligence against Awlaki, I expect we’ll be hearing about it in upcoming weeks.
Yemeni Government Intensifies Harassment of Journalist Who Presented Counter-Evidence to US Case against Awlaki
Ever since I wrote this post, I’ve been thinking about the fate of Yemeni journalist Abdulelah Haider Shaye. As Jeremy Scahill reported last year, President Obama personally intervened in February 2011 to make sure that Shaye would remain in prison, for terrorism charges presented at a kangaroo court, for at least five years.
In the course of pointing out the holes in the NYT piece on Anwar al-Awlaki, I revisited the discrepancy between what, according to DOJ, Umar Farouk Abdulmutallab confessed to immediately after he was arrested on December 25, 2009 and what, according to DOJ, he said in interrogations conducted a month and more later. I’m now convinced, at a minimum, that the discrepancies are much more problematic than I thought when I first reported the discrepancy, and I also think (though I’m still working on this) that the original confession may be more reliable given other known facts. If that’s true, it significantly undermines the government’s case against Awlaki, as Abdulmutallab is the key known witness attesting to Awlaki’s operational role which — at least publicly — is the key criteria that must be met before Awlaki’s killing was legal (though at precisely the moment Abdulmutallab started cooperating, Dennis Blair described the standard to be something different).
Which brings me to this article, which reports on an interview Shaye conducted with Awlaki some time after the UndieBomb attack, presumably at least several days before it was published and therefore before Abdulmutallab started cooperating. The story originally took Awlaki’s acknowledgment he had “communications” with Abdulmutallab to support its claim that Awlaki “met” with the UndieBomber.
Anwar al-Awlaki, the fugitive American-born cleric accused of terrorist ties, acknowledged for the first time that he met with the Nigerian suspect in the Dec. 25 airliner bomb plot, though he denied any role in the attack, according to a Yemeni journalist who said he met with him.
Mr. Awlaki said he had met and spoken with the Nigerian suspect, Umar Farouk Abdulmutallab, in Yemen last fall, according to the journalist, Abdulelah Hider Sha’ea, who played a digital recording of the cleric’s comments for this reporter.
[snip]
“Umar Farouk is one of my students; I had communications with him,” Mr. Awlaki can be heard saying on the recording. “And I support what he did, as America supports Israel’s killing of Palestinians, and its killing of civilians in Afghanistan and Iraq.”
[snip]
Mr. Awlaki, 38, said on the recording that he had no part in the planning or execution of the bomb plot. He did not say whether he had advance knowledge of it. “I did not tell him to do this operation, but I support it,” Mr. Awlaki said on the tape, adding that he was proud of Mr. Abdulmutallab. [my emphasis]
Nine days later it added this correction, and took the word “met” out of the second though not lead paragraph of the article.
An article last Monday about possible connections between Anwar al-Awlaki, a fugitive American-born cleric accused of terrorist ties, and Umar Farouk Abdulmutallab, the Nigerian suspect in the Christmas Day plot against an American passenger jet, paraphrased incorrectly from comments by a Yemeni journalist about the relationship between the two men. The journalist, Abdulelah Hider Sha’ea, said that Mr. Awlaki told him he had “communications” with Mr. Abdulmutallab last fall, not that the two men had met in person. [my emphasis]
To be sure, the correction (which presumably came from Shaye and not Awlaki) doesn’t rule out Awlaki meeting with Abdulmutallab; it just clarifies that’s not what Awlaki said (or even, to take the most cynical view, that Shaye shifted the emphasis after reports of Abdulmutallab’s cooperation were made public).
The Global War on Wayward Knuckleheads
103 minutes into todays Global Threat Hearing in the Senate Intelligence Committee, National Counterterrorism Center Director Matt Olsen got asked his first question, about what his agency is seeing as rising threats. As part of the discussion that ensued, he noted that homegrown Islamic terrorists continued to be a threat though, he admitted, such attacks would be “unsophisticated.”
He then admitted that those who get inspired by Al Qaeda propaganda are “wayward knuckleheads.”
The comment sure seems to confirm a key premise of Trevor Aaronson’s book, The Terror Factory. Our domestic war on terror — complete with FBI-concocted plots — really consists of getting wayward knuckleheads to respond to FBI incitment. “FBI’s trawling in Muslim communities has resulted largely in sting operations that target easily susceptible men on the margins of society.”
Meanwhile, Robert Mueller had a curious comment in his discussion about the ongoing al Qaeda threat. He said that airplane plots remain a threat. The individuals responsible for previous airline attempts still out there, he said.
Um, I thought we had killed at least one individual responsible for previous airline attempts in September 2011. You mean Anwar al-Awlaki wasn’t the mastermind of the UndieBomb threat?
Of course not: Ibrahim al-Asiri was the operational mastermind of it (or maybe Abu Tarak!). Which is why we had another purported attempt last year, more than six months after Awlaki died.
In any case, Mueller’s comment seems to be an at least implicit admission that the Administration oversold Awlaki’s single centrality to the first UndieBomb plot.
Anwar al-Awlaki Is the New Aluminum Tube
Mark Mazzetti, Charlie Savage, and Scott Shane team up to provide the government’s best case — and at times, an irresponsibly credulous one — for the killing of Anwar al-Awlaki and the collateral deaths of Samir Khan and Abdulrahman al-Awlaki.
Yet even in a 3,600 word story, they don’t present any evidence against the senior Awlaki that was fresher than a year old — the October 2010 toner cartridge plot — at the time the Yemeni-American was killed. (I’m not saying the government didn’t have more recent intelligence; it just doesn’t appear in this very Administration-friendly case.) Not surprisingly, then, the story completely ignores questions about the definition of “imminent threat” used in the OLC memo and whether Awlaki was an “imminent” threat when he was killed.
The “linked in various ways” standard for killing Americans
Moreover, the case they do present has various weaknesses.
The story provides a fair amount of space to Awlaki’s celebration of the Nidal Hasan attack (though it does make it clear Awlaki did not respond enthusiastically to Hasan’s queries before the attack).
Investigators quickly discovered that the major had exchanged e-mails with Mr. Awlaki, though the cleric’s replies had been cautious and noncommittal. But four days after the shootings, the cleric removed any doubt about where he stood.
“Nidal Hassan is a hero,” he wrote on his widely read blog. “He is a man of conscience who could not bear living the contradiction of being a Muslim and serving in an army that is fighting against his own people.”
It uses far vaguer language to describe Awlaki’s role in the Faisal Shahzad and toner cartridge plots.
Meanwhile, attacks linked in various ways to Mr. Awlaki continued to mount, including the attempted car bombing of Times Square in May 2010 by Faisal Shahzad, a naturalized American citizen who had reached out to the preacher on the Internet, and the attempted bombing by Al Qaeda in the Arabian Peninsula of cargo planes bound for the United States that October.
“Linked in various ways” seems to be the new standard for killing an American. That, in spite of the fact that Shahzad’s tie to Awlaki seems to be the same Hasan had: an inspiration, but not any involvement in the plot. And while Awlaki is reported to have had some role in the toner cartridge plot, reports from Saudi infiltrator Jabir al-Fayfi apparently fingered others in AQAP as the chief plotters.
I guess that would be too much nuance to include in a 3,600 word article.
NYT doesn’t care about problems with the Abu Tarak explanation
Which leaves the UndieBomb attack as the sole attack in which the NYT presents evidence about Awlaki’s direct role. But there’s a problem with their claims there, too.
The would-be underwear bomber told F.B.I. agents that after he went to Yemen and tracked down Mr. Awlaki, his online hero, the cleric had discussed “martyrdom and jihad” with him, approved him for a suicide mission, helped him prepare a martyrdom video and directed him to detonate his bomb over United States territory, according to court documents.
In his initial 50-minute interrogation on Dec. 25, 2009, before he stopped speaking for a month, Mr. Abdulmutallab said he had been sent by a terrorist named Abu Tarek, although intelligence agencies quickly found indications that Mr. Awlaki was probably involved. When Mr. Abdulmutallab resumed cooperating with interrogators in late January, an official said, he admitted that “Abu Tarek” was Mr. Awlaki. With the Nigerian’s statements, American officials had witness confirmation that Mr. Awlaki was clearly a direct plotter, no longer just a dangerous propagandist.
I don’t doubt that Awlaki was directly involved in this attack in some way. And I got the same explanation about Abu Tarak from “an official” back when I first noted the discrepancy between DOJ’s public claims (thanks for not crediting me on that one, NYT boys). But either Abdulmutallab said something beyond “Abu Tarak was Awlaki,” or the entire explanation is not credible.
That’s because Abdulmutallab’s initial interrogation — according to the version presented by Jonathan Tukel in the opening arguments of Abdulmutallab’s trial — said Abu Tarak did the following:
- Spoke daily with Abdulmutallab about jihad and martyrdom
- Suggested to Abdulmutallab that he become involved in a plane attack against the United States aircraft
- Gave him training in detonating the bomb
- Told him to make sure he attacked a U.S. aircraft and make sure the attack takes place over the United States
Yet according to the version of Abdulmutallab’s interrogation presented in his sentencing memo, here’s who did those things:
- Awlaki and Abdulmutallab discussed martyrdom and jihad
- Defendant and Ibrahim Al Asiri discussed defendant’s desire to commit an act of jihad; Asiri discussed a plan for a martyrdom mission with Awlaki, who gave it final approval
- Asiri trained defendant in the use of the bomb
- Awlaki instructed defendant that the only requirements were that the attack be on a U.S. airliner, and that the attack take place over U.S. soil
Targeted Killing Timeline
A timeline!
I’ve been working on this timeline for almost nine months, trying to pull together the known dates about strikes against Americans, the evidence supporting the strike against Anwar al-Awlaki, the legal cases surrounding both targeted killing and torture, to which targeted killing is linked via the Memorandum of Notification, and Congressional efforts to exercise oversight.
September 17, 2001: George Bush signs Memorandum of Notification (henceforth, Gloves Come Off MON) authorizing a range of counterterrorism techniques, including torture and targeted killing.
September 18, 2001: Congress passes the Authorization to Use Military Force.
November 3, 2002: US citizen Kamal Derwish killed in drone purportedly targeting Abu Ali al-Harithi.
Late 2008: Ruben Shumpert reported killed in Somalia.
June 24, 2009: Leon Panetta gets briefed on assassination squad program.
June 26, 2009: HPSCI passes a funding authorization report expanding the Gang of Eight briefings.
July 8, 2009: The Administration responds with an insulting appeal to a “fundamental compact” between Congress and the President on intelligence matters.
July 8, 2009: Silvestre Reyes announces CIA lied to Congress.
October 26, 2009: British High Court first orders British government to release language on Binyam Mohamed’s treatment.
October 28, 2009: FBI kills Imam Luqman Asmeen Abdullah during Dearborn, MI arrest raid.
October 29, 2009: Hearing on declassifying mention of Gloves Come Off MON before Judge Alvin Hellerstein; in it, Hellerstein reveals NSA James Jones has submitted declaration to keep mention of MON secret.
November 5, 2009: Nidal Hasan attacks Fort Hood, killing 13.
December 24, 2009: JSOC tries but fails to hit Anwar al-Awlaki. On that day, the IC did not yet believe him to be operational.
December 25, 2009: With Umar Farouk Abdulmutallab attack, FBI develops full understanding of Awlaki’s operational goals.
January 2, 2010: In conversation with David Petraeus, Yemeni President Ali Abdullah Saleh speaks as if Awlaki, whom he refers to as a cleric, not an AQAP member, was a designated target of December 24 attack.
The War and Intelligence behind Anwar al-Awlaki’s Targeting
Believe it or not, there’s a fascinating debate going on over at NRO. First, Charles Krauthammer points to the muddle of the Administration’s white paper, which could have (he argues) just authorized Awlaki’s killing under the laws of war.
Unfortunately, Obama’s Justice Department memos justifying the drone attacks are hopelessly muddled. They imply that the sole justification for drone attack is imminent threat — and since al-Qaeda is plotting all the time, an al-Qaeda honcho sleeping in his bed is therefore a legitimate target.
Nonsense. Slippery nonsense. It gives the impression of an administration making up criteria to fit the president’s kill list. No need to confuse categories. A sleeping Anwar al-Awlaki could lawfully be snuffed not because of imminence but because he was a self-declared al-Qaeda member and thus an enemy combatant as defined by congressional resolution and the laws of war.
Nowhere, unfortunately, does Krauthammer consider why they didn’t do this — or indeed look more closely at the details behind Awlaki’s killing.
Kevin Williamson takes issue with that, reviewing both Awlaki’s lack of indictment after 9/11, but also expressing doubt that Awlaki moved beyond propaganda.
There is a difference between sympathizing with our enemies and taking up arms against the country; there is even a difference between actively aiding our enemies and taking up arms against the country, which is why we have treason trials rather than summary execution.
The question of whether al-Awlaki in fact took up arms against the United States is unanswered, at least in my mind. The evidence suggests that he was very much the “bin Laden of the Internet” rather than a man at arms. What perplexes me is that so many conservatives trust the same government authorities who got it so spectacularly wrong about al-Awlaki the first time around — feting him at the Pentagon, treating him as an Islamic voice of reason — to get it right the second time around. This is not a libertarian criticism but a conservative one. It is entirely possible that the same unique strain of stupidity that led to al-Awlaki’s being invited to the Pentagon as an honored guest of the U.S. military is alive and well in the Obama administration. This is precisely why we have institutions such as the separation of powers, congressional oversight, and trials. Killing a U.S. citizen in the heat of battle is one thing, but Al-Awlaki was not killed in a battle; he was not at arms, but at breakfast. Enemy? Obviously. Combatant? Not obviously.
And then Andrew McCarthy writes in to suggest that Jane Fonda would have made the Kill List had we had one during Vietnam.
Now aside from McCarthy (who serves here only as a warning in where this is going), both these contributions are worth reading.
But what both are missing are the known details about the development of intelligence on Anwar al-Awlaki between the time he was first targeted, on December 24, 2009, and the time he was killed, on September 30, 2011. And while I can’t claim to know the classified intelligence, there’s enough in the public record that ought to give both men more nuance in their arguments. Three key points I lay out in more detail here:
- Awlaki was first targeted, by the military and before the OLC memo the white paper is based on was written, at a time when the intelligence community did not consider him operational.
- During negotiations for a plea agreement that never happened, Umar Farouk Abdulmutallab implicated Awlaki in a clearly operational role, but after plea negotiations fell apart, that testimony was never presented in an antagonistic courtroom (indeed, the government itself told a significantly different story at Abdulmutallab’s trial).
- By the time Awlaki was killed, the government likely had additional evidence suggesting Awlaki’s role in actual plots — notably the October 2010 toner cartridge plot — was weaker than the “senior operational leader” role they invoked when they killed him.
The one time we presumably did try to kill Awlaki under the Krauthammer standard — even the government now says — he did not fit that standard. There was probably a moment to kill Awlaki under that standard (if you ignore that the government was only at this point formalizing AQAP’s status as a terrorist group) around February 2010, before the white paper was written. But by the time we did kill him, not only were there unidentified reasons to get CIA involved (probably having to do with the unreliability of Ali Abdullah Saleh), but the contorted pre-crime standard of imminence John Brennan described probably was what the government was working with (as well as, I suspect, a theory that made Awlaki’s propaganda into an act of war), because the intelligence implicating Awlaki had gotten weaker over time.
There are probably multiple reasons why the argument in support of Awlaki’s killing is so contorted. But one of them appears to be changes in the intelligence the government had implicating him.
Which is why Williamson is ultimately correct. This is why we have courts and separation of powers.
They Knew the Evidence against Anwar al-Awlaki Was Weak When They Killed Him
In case you don’t want to read these two long posts, I want to point to two passages from the white paper that show, on two key points, the government wasn’t even claiming Anwar al-Awlaki was the “senior operational leader of Al Qaeda or associated forces” they keep saying he was when they killed him.
First, on the issue of whether someone is an imminent threat or not, the white paper says a person is an imminent threat if he has “recently been involved in activities posing an imminent threat against the US” and has not renounced those activities.
Moreover, where the al-Qa’ida member in question has recently been involved in activities posing an imminent threat of violent attack against the United States, and there is no evidence suggesting that he has renounced or abandoned such activities, that member’s involvement in al-Qa’ida’s continuing terrorist campaign against the United States would support the conclusion that the member is an imminent threat.
And this part of the definition requires only that the target be an al Qaeda member, not a “senior operational leader.”
And then, when examining whether killing an American overseas counts as murder, the white paper says the President can order the murder of an al Qaeda member who poses an imminent threat to the US.
Similarly, under the Constitution and the inherent right to national self-defense recognized in international law, the President may authorize the use of force against a U.S. citizen who is a member of al-Qa’ida or its associated forces who poses an imminent threat of violent attack against the United States.
Again, the American need only be a member, not a senior operational leader.
These are, to be sure, two short passages in a much longer memo. But consider how they work with the 3-part criteria laid out in the memo, which requires only that 1) John Brennan determines that someone is an imminent threat, 2) John Brennan determines that capture is not feasible, and 3) that the killing be consistent with applicable law of war principles.
Once you get to that “imminence” designation, you can kill the American, based on John Brennan’s say so. And “imminence,” for these purposes, can be as weak as past involvement (not leadership — and remember they once said that actions that lead to actions that pose a threat can get you killed, too) in activities that pose an imminent threat of violent attack on the US, so long as you haven’t formally renounced those activities.
This, I strongly suspect, is why Ron Wyden keeps asking “Does the President have to provide individual Americans with an opportunity to surrender before using lethal force against them?” Because as the white paper stands, being uninvolved with any attack for at least a year and perhaps as long as 20 months — which may well be the case with Awlaki — doesn’t count as renunciation.
I have suggested this language may have gotten introduced in a second memo, not long before they killed Awlaki in September 2011, at a point when all the evidence against him was very stale and had gotten weaker over time (the government moved to protect something under CIPA in the UndieBomber case just a week before Awlaki was killed, though that could have been the first memo).
Whether that’s what happened, though, it seems highly unlikely the language would be in the white paper if it weren’t in some document somewhere authorizing Awlaki’s killing.
Which seems to suggest they couldn’t prove — even if they once had been able to — that Awlaki was the senior operational leader they have insisted him to be. And so they wrote the memo to authorize the killing anyway.