Is Anwar al-Awlaki The Unnamed “National of the United States” In Warsame Indictment?

As Marcy noted Tuesday afternoon, and has been large in the news the last two days, there is a new terrorism prosecution announced by Eric Holder and the Obama DOJ. The case concerns Ahmed Abdulkadir Warsame, and is interesting in that Warsame is alleged to be a member/leader of al-Shabaab, and none of the allegations involve acts of plots against the US or its citizens directly.

In fact, the only significant nexus to the United States contained within the indictment unsealed against Warsame is that he:

…conspires with a national of the United States…

This is unusual as to the complete lack of description and details about the “national of the United States” and the complete absence of any information indicating the nature of conspiracy and/or contact with the “national of the United States. To be fair, a charging document is not legally required to be a “speaking indictment” that fully lays out every minute detail of the jurisdiction, venue and facts; although this one is one of the more silent ones I have seen in a long time from the DOJ.

But, what is really fascinating is this today from Charlie Savage at the New York Times:

Meanwhile, new details emerged about Mr. Warsame’s detention on a Navy ship after his capture in April aboard a fishing skiff between Yemen and Somalia, and about internal administration deliberations on legal policy questions that could have implications for the evolving conflict against Al Qaeda and its affiliates.

A senior counterterrorism official said Wednesday that Mr. Warsame had recently met with Anwar al-Awlaki, the American-born radical cleric now hiding in Yemen. After his capture, he was taken to the Boxer, an amphibious assault ship that was steaming in the region and has a brig, a senior military official said.

While Mr. Warsame is accused of being a member of the Shabab, which is focused on a parochial insurgency in Somalia, the administration decided he could be lawfully detained as a wartime prisoner under Congress’s authorization to use military force against the perpetrators of the Sept. 11, 2001, attacks, according to several officials who spoke on the condition of anonymity to discuss security matters. (emphasis added)

So, we have Warsame allegedly “conspiring” with a “national of the United States” in the indictment with the identity and circumstances being unusually and ridiculously guarded and vague; and now we have Warsame having had contact with Awlaki.

Gee, I wonder what the odds are they are one in the same person???

Because, as you may remember, Awlaki is so secret that the US government saw fit to declare state secrets rather than explain to Awlaki’s parents why they feel justified to violently assassinate their son, a US citizen, without so much as a speck of due process. Now, I guess a guy that secret is someone the government might just be really vague about in an indictment of some tangential corollary person, say Warsame, for instance.

So, is it truly the case that Awlaki is indeed the unnamed “national of the United States” here in the Warsame indictment? I don’t know for certain, but it sure as heck fits the facts as we know them and the depraved refusal of the American government to talk about or let the public know its basis for impunity in marking an American citizen for extrajudicial termination with prejudice.

Now, back to the Warsame indictment for one last thought. While I agree with Marcy, Ben Wizner of ACLU and Adam Serwer that the Obama Administration decision to bring Warsame in front of an Article III court for trial was a brave one in relation to establishing credibility of traditional terrorism prosecutions, I wonder if Warsame is really the right case to do that with?

In Warsame, all the overt acts, heck all the acts period, took place outside of the US, and none of them, none, were particularly directed at all, much less with malice, at the US or US citizens. al Shabaab is a nasty group of terrorists to be sure, but is this really the use we want to make of US Article III courts? Shouldn’t the prosecutions the Administration uses to establish credibility have some, even minimal, overt act nexus to the United States and the Southern District of New York?

21 replies
  1. emptywheel says:

    With all due respect to Charlie, if the government declares all information about an alleged terror suspect state secrets, shouldn’t journalists quoting SAOs force them to do so on the record?

      • emptywheel says:

        Imagine how this will play out even in the Warsame case.

        Admin goes to introduce evidence of meeting bet Awlaki and Warsame as the basis for prosecution. But Awlaki is a state secret. Somehow, they’ll lower their standards to get beyond a CIPA bar. All the while pointing back to the public article that says the meeting provides the nexus for both AUMF application and jurisdiction.

  2. prostratedragon says:

    1. You have to insert the twist before joining the ends to get the mobius strip, right? (Oh, I’ll bet they have acre lots on al-Awlaki.)

    2. I’ll bet the chop shop kids love this, since it gets people on the record with opinions about the nexus thing for the next time someone somewhere tries a universal jurisdiction indictment.

  3. MadDog says:

    I’m so happy I was 24 hours ahead of Charlie Savage.

    Or maybe he reads EW’s posts and our comments and as a result, decided to press his sources on the point.

    Either way, I’m feeling oh-so smart. And as my accomplices here would attest should the truth be told, that is a dubious proposition. *g*

    And I’m still betting that my guess on this is also on the mark:

    And I wonder if this drone strike in Yemen targeting Anwar al-Awlaki in May reported by Mark Mazzetti of the NYT was also as a result of Warsame’s capture in April:

    Drone Strike in Yemen Was Aimed at Awlaki

  4. earlofhuntingdon says:

    Choosing a case with a better set of facts to bring to an Art. III court would have been wise if one wanted to assert the government’s obligation to bring such cases to court, to express one’s commitment to the rule of law.

    If, however, one were intent on demonstrating the incapacity of such courts to deal with “complex, national security” matters, if one were intent on establishing the need for executive-controlled alternatives to them, than this is the sort of high-profile case Mr. Obama’s DoJ might well bring. I wonder whether Mr. Obama will also bring in Mr. Welch to handle it?

    • scribe says:


      They looked at the recent Article III trial they did in NYC – one of the Embassy Bombing cases – where they lost hundred of counts and only won one and recognized that, if undermining Article III Courts was the objective, the best way to do it was by bringing tangential cases in them. The Embassy Bombing case they brought was very tangential (as was a recent DEA’s African Adventure case, profiled a number of times over on TalkLeft, where the only nexus to the US was that the dope smugglers thought that one of the guys was going to take his cut of the non-existent coke that was headed to Europe, and send it to the USofA) and they almost lost it. And the editorial reaction in NYC and DC was volcanic – to the effect of “bring the fuckers before a military tribunal, give them a fair trial this morning and shoot them out back this afternoon.”

      One only need look at the reaction to the acquittal in the Anthony capital murder case to allow you to imagine what will happen the first time they lose a terrorism case.

  5. JTMinIA says:

    Is it possible that they’re charging Warsame in civilian court so that they can lose the case and thereby avoid having the question of which type of court – civilian or kangaroo – any and all future cases should be tried in?

  6. rugger9 says:

    I don’t see this making it into a civilian court, even with a long history of handling in-camera proceedings. Even there, the defendant has the right to face the accusers, directly or through the lawyer. Likewise for the UCMJ process. That leaves the kangaroo commissions as the DOJ’s alternative, because super-duper-secret-“evidence” cannot be scrutinized there and that’s how this case holds together.

    If Obama’s DOJ spent as much time investigating the RICO-liable activities of Rove, Darth, Kochs, et al., the country would be safer. Just ask Siegelman.

    As far as the Earl’s point, there are still lots of burrowed-in civil service and not-yet-replaced-political Bushies at DOJ, where failure is a policy line item. They win [and Obama loses] with the havoc sure to ensue regardless of the outcome in this case. It still makes me wonder what leverage these guys have on Obama to keep him from doing what is right. Again.

    • bmaz says:

      Blaming anything on “burrowers: is a crock at this point. If they are doing it, it is sanctioned and desired by Obama and his leadership. Period.

      • earlofhuntingdon says:

        Indeed. Many a Cheney mole burrowed its way into the permanent bureaucracy, but it was almost unnecessary. Obama allowed GOP political appointees to remain, some for years, some are still there, a phenomenally self-destructive laxity on his part. And as you say, Obama the establishmentarian has wholeheartedly adopted the existing CheneyBush policies and staff. Instead of digging out the moles and resuscitating the agencies whose roots they have undermined, Mr. Obama is feeding them and opening up new acreage for them to enjoy.

      • rugger9 says:

        The burrowers are still there, unrestrained. They are also the ones making these decisions even if Obama doesn’t veto them, which comes back to the question of why not? Are you saying that Obama would have made these choices of his own free will, given his con-law background? I’d be surprised to hear that. My guess is that Obama’s been muzzled somehow to ensure “looking forward”, and is routinely presented with these no-win situations to ensure future leverage. It’s not unlike a company situation where cronies seem to go higher in spite of SNAFUs because they are protected from the consequences. Once one lets a situation like that go, they are on the hook forever “because you said it was OK before…”. Obama blew his opportunity due to sheer spinelessness in the face of determined and unethical opposition. And he knew better.

        So, while you blame Obama, alone, realize he may have limited options due to Bushie incompetence in prosecutions and tainted evidence, and he’s trying (badly) to pick his way out of the minefields.

        • bmaz says:

          This is a crock of dung. Obama’s “con-law background” is not worth a bucket of spit. And, yes, the “burrowers” certainly are capable of being restrained. They all operate under the supervision of Obama political appointees. If you want to box in or sideline these kind of people, it is really quite easy; but you have to want to do it. Bush and Cheney did not have any problem turning the DOJ into exactly what they wanted; Obama would not either if he gave a flying fuck. It does not have jack shit to do with “opposition”; it is on Obama.

          • MadDog says:

            I’ve said it before and I’ll say it again: Either Obama and Holder aren’t managing the National Security State and the National Security State is managing them, or Obama and Holder are willful and witting accomplices.

          • rugger9 says:

            So, who would you rather see in the WH? Obama, one of the currently-announced-or-considering-a-run GOP loonies, or (IMHO) the stealth GOP candidate Petraeus?

            This choice is an example is the kind of situation Obama faces out of DOJ by his failure to clean house [we totally agree on that point], I’m not excusing it, just explaining it. No, I wouldn’t vote for any of the above except Obama if those are the only options. However, I”d prefer to see a real progressive alternative that is viable for the general election to primary Obama into being a Democrat again.

            • bmaz says:

              I would love to see Liz Warren challenge Obama from the left. I am not sure I would vote for him over Obama, but I would think about Jon Huntsman pretty hard.

  7. rugger9 says:

    Note also that once someone gets away with something, the persons who were obligated to stop it become equally culpable and instead of getting it right the next time, they cave in to cover their own screwup in a long-running feedback loop. It only stops once an external, uncontrollable force (like the press or a pissed off customer) forces the change.

  8. michtom says:

    I see no reason to think that Obama would only agree with Bushies under pressure. Why do you?

    Why do you think Obama would be advantageous in terms of
    1. The rule of law
    2. Abiding by the Constitution
    3. Ending wars
    4. Bringing corporations under control
    5. Creating jobs (in the US)
    6. Maintaining US infrastructure
    7. Protecting abortion rights
    8. Preventing (or slowing down) global warming
    Etc. Etc. And so forth????????

  9. JohnLopresti says:

    In reading the unsealed indictment, it looked much like a small arms control gambit in a part of the world proximate to a strategic aggregation of traderoutes and a vortex of obdurate polities of millenia standing. It also called to mind the court date in sdnY set for V Bout on arms transport accusations set for the first week of autumn 2011. Additionally, I would suggest perusal of a post by a prof concerning Aulaqi*s country*s current state of **unrest**, aggravated by the dictator*s having had to become enrolled in an extraterritorial protracted course of rehab after a nearly half body surface area burn incident in a fracas which occurred a month ago. Newsreports I read said Arabia, where the treatment is taking place, has opted to extract its contingent of military assists to the then still viable dictator; other newsitems contend the US is on a new hastened remake of its own plans for ancillary military activities in the country or thereabouts regionally, Aulaqi*s home nation having had a long history of difficult unity in a societal sea of independent viewpoints. The above link includes a map which shows that even the name Aulaqi is the moniker of a region within that country. I see Warsame*s US courtcase as part of a geopolitical contest in a theater which is in dynamic change.

    I saw an article explaining 1/3 of Arabian workers are foreign nationals in origin, and that the remittances to its southern neighbor from workers sending money home to the famil in Yemen last year totaled 1 BBN USD.

    FYI, in the professor website linked, the first named in its blogroll is Juan Cole.

  10. JohnLopresti says:

    re: [email protected], above. Reading again the foreign worker quotient article from Bloomberg Businessweek, as republished in a conservative news site under the guise of a liberal press tradition, the ratios I quoted are inacurrate, and the precise statistic for the northern peninsula and southern area near Aden as well; sorry for the misquote. The *source* article is of Bloomberg origin. There is an aphorism about the value of statistics, which also likely is germane in the foregoing context, there. Also, Pearlstein has written about Warsame*s condition of detention with regard to applicable international there, replicated at opinio juris.

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