How Good Are DOJ’s Reasons for Burying Its Case against Anwar al-Awlaki?
Today’s the day Eric Holder explains how his Department decided it was okay to kill a US citizen with no independent legal review, even while he says we should use civilian courts to, uh, give terrorists due process.
Now, at least as of late January, the Administration still planned not to include any real information about its case against Anwar al-Awlaki in Holder’s speech.
As currently written, the speech makes no overt mention of the Awlaki operation, and reveals none of the intelligence the administration relied on in carrying out his killing.
Since much of the evidence that has been used to implicate Awlaki came from Umar Farouk Abdulmutallab, I’m going to return to a question I first raised several weeks ago, why DOJ sat on the information it got from Abdulmutallab implicating Awlaki so long.
In this post, I considered why DOJ published a narrative explicitly describing Anwar al-Awlaki’s role in Umar Farouk Abdulmutallab’s terror plot last month, rather than when it learned the information from Abdulmutallab sometime in 2010. The reason is likely evidentiary. It appears the government never persuaded Abdulmutallab to testify against Awlaki even while he was implicating Awlaki during “plea negotiations,” meaning it’s unclear Abdulmutallab would have repeated the information implicating Awlaki in court. Note, since that post, Abdulmutallab prosecutor Jonathan Tukel confirmed in court that the UndieBomber was offered–but did not accept–a plea agreement.
In this post, I will consider other reasons why DOJ may have buried (and presumably will continue to bury) their case against Awlaki: a desire to hide its signals intelligence, its informants, as well as a desire to win legal cases.
Wiretaps on Awlaki had already been exposed
I’ve laid out a timeline of select events and disclosures below. But I want to start from this article, published the day after Abdulmutallab fired his public defenders in 2010, presumably putting an end to hopes to get him to testify against Awlaki publicly. It noted that charging Awlaki would require the US to rely on wiretaps and confidential informants.
Charging al-Awlaki with having direct involvement in terrorism could require the U.S. to reveal evidence gleaned from foreign wiretaps or confidential informants.
The issues with the terms of Abdulmutallab’s “plea negotiations” aside, was that a credible reason to hide the intelligence on Awlaki?
With respect to the wiretaps, no.
Crazy Pete Hoekstra made it clear in November 2009–over a month before Awlaki was first targeted by a US drone–that NSA had been wiretapping him for at least a year. In reporting in the days after Abdulmutallab’s attack, anonymous sources made it clear the NSA had (belatedly) discovered intercepts discussing the plot, too.
Other intelligence linking al-Awlaki to Abdulmutallab only became apparent after the attempted bombing, including communications intercepted by the National Security Agency that indicated that the cleric was meeting with “a Nigerian” in preparation for some kind of operation, according to a U.S. intelligence official.
The intelligence revealed last month–detailing how Awlaki tested Abdulmutallab’s interest in jihad before they met–doesn’t seem to compromise NSA’s wiretaps any more than Hoekstra already did.
Defendant provided this individual with the number for his Yemeni cellular telephone. Thereafter, defendant received a text message from Awlaki telling defendant to call him, which defendant did. During their brief telephone conversation, it was agreed that defendant would send Awlaki a written message explaining why he wanted to become involved in jihad. Defendant took several days to write his message to Awlaki, telling him of his desire to become involved in jihad, and seeking Awlaki’s guidance. After receiving defendant’s message, Awlaki sent defendant a response, telling him that Awlaki would find a way for defendant to become involved in jihad.
It seems the government could have released this information months earlier, and certainly should never have been declared a state secret.
That said, the intercept information doesn’t make the case that Awlaki ordered Abdulmutallab to strike the US. So even if the government had released that information, it wouldn’t have justified targeting Awlaki with a drone.
The need to protect confidential informants
I’m much more sympathetic to DOJ’s concerns about revealing details obtained from confidential informants–because there is good reason to believe we had at least a few double agents working within AQAP, at least two of whom went through Saudi Arabia’s “deradicalization” program.
As the timeline below shows, before Abdulmutallab showed up in Yemen, former Gitmo detainee Mazin Salih Musaid al-Awfi, who had “rejoined” al Qaeda in Yemen, returned from Yemen to Saudi Arabia, a possible double agent. Then, at about the same time Abdulmutallab was headed to Yemen, AQAP bombmaker Ibrahim al-Asiri’s brother, Abdullah, tried to assassinate then Saudi Interior Minister Mohammed bin Nayef. Asiri used Nayef’s willingness to work with “repentant jihadis” to get close to him. As such, the plot may have been an attempt to retaliate against Nayef for his efforts at “deradicalization.” Most famously, Jabir al-Fayfi, who worked with AQAP for two years, returned to Saudi Arabia in October 2010; Fayfi would have been with AQAP when Abdulmutallab was training with the group and would have been able to provide information on him–and Awlaki (I understand that Fayfi implicated others far more than he did Awlaki, though, so in a sense, that would have hurt DOJ’s case against Awlaki).
The threat to suspected informants is real and ongoing; a few weeks ago, the rebranded AQAP group Ansar al-Sharia executed three men suspected of providing targeting intelligence to the US.
Note, though, intelligence on Abdulmutallab’s training shouldn’t have been that hard to collect. In his superb story on Yemen, Jeremy Scahill reported that a tribal leader he traveled with and discussed on the record had met the UndieBomber, as well as top AQAP leaders. One would hope that what Scahill can get in a several week trip, our intelligence operatives can learn in lengthier deployments.
It’s not really clear whether and how much of what the government released last month came from alternative intelligence sources. My guess is that information on Abdulmutallab’s training, such as the detail that he met Samir Khan and unnamed others, came from or at least was supplemented by others. And given that the government doesn’t name the person who introduced Abdulmutallab to Awlaki–the narrative explains, “defendant made contact with an individual who in turn made Awlaki aware of defendant’s desire to meet him”–I suspect they may have learned this detail from someone else.
That leaves the big question: was someone like Fayfi close enough to Awlaki in December 2009 to corroborate the key detail that Awlaki ordered Abdulmutallab?
If so, by that point Yemen had already made it clear that Fayfi was one source of the intelligence on the toner cartridge plot.
The example of Fayfi also reveals non-safety reasons why the government might not want to release the intelligence it has on Awlaki. First, Fayfi implicated others more than Awlaki, so his testimony might have exonerated Awlaki. In addition, tying intelligence about Awlaki directly to Fayfi would raise questions about whether we’ve used Gitmo to persuade people to spy for us–not to mention, the accuracy of such information, particularly since a number of detainees were known to fabricate information to please Gitmo handlers. By the time Fayfi returned to Saudi Arabia, OLC had already authorized the killing of Awlaki; what would we have done if Fayfi refuted the intelligence we used to target Awlaki?
So while a desire to hide informants is a more reasonable excuse for hiding the information on Awlaki than a desire to hide the wiretapping that Hoestra exposed in 2009, not all of the reasons the government would want to do so are laudable.
The government wouldn’t say because it didn’t want to lose a lawsuit
The other reason the government may have withheld information–which is utterly absurd but nevertheless a possible explanation–is that it didn’t want to lose any lawsuits over the information.
That, at least, was the reason Kathryn Ruemmler opposed the speech Holder will give today last November.
Another senior official expressing caution about the plan was Kathryn Ruemmler, the White House counsel. She cautioned that the disclosures could weaken the government’s stance in pending litigation. The New York Times has filed a lawsuit against the Obama administration under the Freedom of Information Act seeking the release of the Justice Department legal opinion in the Awlaki case.
But if that’s what motivates Obama’s lawyer, then it has been an issue throughout the time the Administration has refused to release its case against Awlaki. For example, Scott Shane must have FOIAed for the OLC memo on Awlaki’s killing within days of its completion (we don’t know what date in June 2010 OLC finalized the memo, but Shane FOIAed the memo on June 11, 2010). The next month, Awlaki’s father retained ACLU and Center for Constitutional Rights to sue to prevent the son’s killing except if he were an imminent threat. That suit was submitted on August 30, 2010, and not dismissed until December 7 of that year. And in the immediate aftermath of the Awlaki killing on September 30 of last year, Charlie Savage submitted a new FOIA for the memo, and Public Record Media and the ACLU followed suit later the same year. At least the NYT and ACLU are suing to force disclosure of the memo.
In other words, since just two months after the last interrogations of Abdulmutallab provided to Dr. Simon Perry–but several months before he fired his lawyers, presumably ending any hope that a plea deal would lead to Abdulmutallab’s testimony against Awlaki–the government has been in at least one legal proceeding regarding the legal justification for killing Awlaki. It still is. And the White House Counsel thinks that’s a good reason to prevent any more from coming out.
All of these reasons provide yet another reason to institute some kind of due process. Using CIPA, the government could submit much of this intelligence in a means that can be made public.
But instead, we’re left with one court filing–the Abdulmutallab one–summarizing things Abdulmutallab refused to say in a trial and … still more rumors.
February 18, 2009: Possible double agent Mazin Salih Musaid al-Awfi leaves AQAP
August 2009: Abdulmutallab travels to Yemen to seek Awlaki
August 2009: Abdullah al-Asiri attempts to assassinate Mohammed bin Nayef by posing as repentant jihadi
November 9, 2009: Pete Hoekstra reveals government has been intercepting Awlaki’s communications going back at least a year
December 25, 2009: Abdulmutallab confesses that an Abu Tarak ordered him to strike the US
December 26, 2009 to January 28, 2010: Abdulmutallab refuses to talk
January 19, 2010: US designates AQAP terrorist group
January 29, 2010 to February 23, 2010: The main period of Abdulmutallab’s interrogations
By April 6, 2010: Awlaki placed on CIA’s kill list
April 8, 16, 30, 2010: Abdulmutallab interrogated 3 more times and asked about Awlaki’s death
June 2010: OLC authorizes Awlaki’s killing
June 11, 2010: Scott Shane FOIAs OLC memo on Awlaki killing
July 2010: Nasser al-Awlaki retains ACLU/CCR to sue for due process
July 16, 2010: US declares Awlaki a designated terrorist
August 30, 2010: ACLU, CCR sue to limit killing of Awlaki to imminent threat
September 8-9, 2010: Jabir al-Fayfi rounded up by Yemen.
September 13, 2010: Abdulmutallab fires his lawyers, citing a conflict of interest
September 14, 2010: DOJ considers charges against Awlaki but worries about relying on information from wiretaps or confidential informants
September 25, 2010: Government opposes ACLU/CCR suit to force government to show due process, in part by invoking state secrets
October 29, 2010: Toner cartridge plot exposed by presumed double agent Jabir al-Fayfi
December 7, 2010: Judge John Bates dismisses ACLU/CCR Awlaki suit
August 28, 2011: Government commits not to use Abdulmutallab’s confessions implicating Awlaki directly at trial
September 23, 2011: Government requests protective order for item apparently pertaining to Awlaki and Abdulmutallab
September 30, 2011: Anwar al-Awlaki killed in drone strike
October 7, 2011: Charlie Savage FOIAs OLC memo
October 11, 2011: Opening arguments in Abdulmutallab trial
October 12, 2011: Abdulmutallab pleads guilty
October 19, 2011: ACLU FOIAs Anwar al-Awlaki OLC memo, underlying evidence supporting it, and information relating to Samir Khan and Abdullah al-Awalaki
November 2011: Administration decides to partially release information pertaining to Awlaki’s death
February 10, 2012: Government releases narrative implicating Awlaki
From a Rick Pildes post at Lawfare:
Unfortunately, I do not really se this in the offing from Holder today. I expect a few nuggets that will help us focus our questions and facts already extant, and that reinforce them, but little new or overly helpful. I wish Rick’s hopes were the case, but it is damn unlikely.
Also, I love how Reuters frames the background for their readers:
Uh, hello, Reuters and Jeh Johnson, the problem is there are huge questions as to whether they are “legitimate military targets” (especially as to Khan, Awlaki’s son, and even Awlaki himself and there are large questions as to whether there is a legitimate “armed conflict” so that “the law of war” applies.
The little explanations the government makes sound great, except they are house built of flimsily and falsely assumptive cards.
Also the note about “well settled legal principles” which I would guess means something like stare decisis. However, any litigation I have heard about refers to much smaller scale operations in the heat of the moment, such as a homeowner defending their house vs. robbers. What we have here is execution without trial of any kind being claimed as litigated. I seriously doubt that has happened. Where is the due process for imposing the most extreme punishment [plus the collateral damage and deaths] where the defendant has their turn? Or is the USG going to use this on the mafiosi next?
For the law of war to apply would require a declaration, the AUMF is not sufficient and has been rendered moot by OBL’s demise. There is no clear and present danger either, the timeline shows that there were no imminent threats, nor were there any alleged when Awlaki and the others were rubbed out.
One has to wonder just how long the string needs to be to cover the bases here, it’s really better to be honest for once. I hope the Awlaki family sues.
ethics at harvard:
how our future rulers and their vizers pass their time at dear old veritas u.
by a pbk graduate of harvard.
Just for fun, we might take a little walk into Wilderness of Mirrors conspiracy theories. Perhaps, the Press Release allowed by the “intelligence authorities” is correct. Awlaki’s car was droned and they got the Saudi Bomb Guy and some other important Al Qaeda in Yemen guys. There also seemed to be no innocent women and children killed which is unusual by our Brave Drone Boys.
But just to be argumentative, what if it is just a cover story? Since these Al Qaeda guys are all double agenta and Awlaki met with the “Vulcans” at the Pentagon, maybe Awlaki was a double agent. Maybe Awlaki now gets to manage a 7-11 in San Diego. Awlaki could hook up with that other CIA/Al Qaeda double agent Ali Mohammed.
But I always try to believe the Pentagon press releases. It would be more convincing if there was actual evidence for this supposed event. But there is little actual evidence of “Al Qaeda”. There is little actual evidence to support anything the Pentagon says.
Sorry to catch you with an OT, but I was wondering if you are giving the Stratfor emails a little more thought?
There’s an aspect of straining out gnats and swallowing camels to the Al-Awlaki discussion. The legal argument is clear: Al-Awlaki is considered equivalent to an American citizen who opted to become an enemy soldier. In conventional warfare scenarios of simpler times past – say had Al-Awlaki donned a Wermacht uniform – no one would have been expecting due process before some grunt was allowed to put a bullet in his head. “Extrajudicial” killings are ipso facto an intrinsic trait of war. And as it happens, killing people without due process is perfectly legal under the laws of war – e.g. the Geneva conventions – as long as the person killed is in fact an enemy soldier, or combatant. But there’s – crucially – no requirement for the enemy soldier receiving due process w/r/t evaluating his combatant status. That would – trivially – not be war.
So how have we traditionally made sure that people killed in wars are in fact soldiers and not civilians? Under Geneva, the onus is on the fighting parties to signal who’s a soldier and legitimate target by donning attire that clearly shows that a combatant is a combatant. A fighting force that opts to ignore that rule of war makes itself indistinguishable from the civilian population. Geneva considers such fighters – combatants – to be putting the civilian population at unnecessary risk. Thus they are considered illegal combatants, who may be convicted in civilian court of crimes that other soldiers cannot be.
In summary: this is Holders argument. The United States have reasonable cause to believe that certain people are Al Qaeda soldiers, who can – legally – be killed without trial, just like any other soldier.
That’s the legal case, and it’s pretty straight-forward. There’s no obligation to agree. But any credible case against Holders position must argue that it’s unreasonable to consider Al-Awliki an enemy soldier. Note that demanding that Al-Awliki be proven an enemy soldier in a civilian court of law under due process is nonsensical. That’s not a requirement that exists in a state of war. War being chaos, the onus is on the fighting parties to identify themselves – in order to protect civilians. Straying from this convention does not earn you the right to “due process” any more than committing some other war crime does. Due process does not exist for soldiers – be they American citizens or of some other nationality.
Moving beyond the legal case, I have to say I find it somewhat absurd if the position of the anti-war left is gonna be grudgingly accepting the more conventional killing of taliban insurgents in e.g. Afganistan, while crying bloody murder over drones bombing Al Qaeda members.
The American people were persuaded into war in Afghanistan and Iraq as a response to 9/11. The 90+% who supported Enduring Freedom at the start of hostilities, supported “getting” those responsible to 9/11. Well, Al Qaeda were responsible. Not the tens of thousands of Afghans and Pakistanis called “the taliban”. Not Saddam Hussein, or the Sunnis of Iraq.
Say what you will of these drone strikes, but at least they’re actually targeting Al Qaeda and nothing else. What level of civilians casualties are we willing to accept in the more conventional fight against the Taliban? Well, fact is that several thousand innocents – civilian casualties – have died; as they do in all wars. We accept that.
Demanding trial by jury before we’re allowed to go after the people we actually should have been going after from the outset – while not demanding it when going after people that never attacked us – is profoundly absurd. When you think about it.
“…the AUMF is not sufficient and has been rendered moot by OBL’s demise.”
That’s what YOU think. However, none of the three branches of government have issued any ruling or judgment to this effect. And that’s why the AUMF is destroying our Democracy. War without end. That’s what we’ve got. Civil liberties, not so much.
Bob in AZ
@Danny: You’re obviously new here, as you’d be hard pressed to find anyone defending the ongoing war in Afghanistan. Both Jim and I have been arguing for some time that we’ve accomplished our military goal there–extinguishing AQ–and therefore the war should be over (along w/the AUMF, but that’s another issue).
But two things about your legal case.
1) that’s not what this post is about. The govt has invented all sorts of ridiculous claims about why its arguments about Awlaki can’t be released (such as the state secrets invocation in the ACLU suit that everyone and their mother violated when he died). THis post addresses the reasons–some legitimate, some not–they made those arguments. There are 3 active threads on the clusterfuck of a speech Holder just made if you want to try your arguments about legality elsewhere.
2) as to that argument, the operative evidence we worked on was that Awlaki was a propagandist. I’m not arguing he remained that, but I am saying that it is far from clear, on any level, he was a combatant. So are you arguing for drone strikes on propagandists now?
New here, yes, but I posted for awhile at FDL as ‘sherwood’ – before Jane banned me (for arguing that Obama did not order Manning tortured, or something of the sort). I posted on a couple of your posts as well…
Anyway, as to your points
1) I think I read your post wrong and mistook it as being in some part commentary on the contents of the Holder speech, so sorry about the hijack. In my defense, I ended up here because I googled the Holder speech. But, again, sorry for the hijack.
2) While Holders speech – from what I understand – did not explicitly lay out the case for Al-Awlaki, reporting in WPost today say “Awlaki, who was born in New Mexico, played an operational role in several plots, including the failed attempt to bring down a commercial airliner over Detroit in 2009, according to administration officials.” That’s obviously the administrations case that Al-Awliki was to be considered equivalent to a soldier/officer.
Also, from Wikipedia: “Abdulmutallab reportedly told the FBI that al-Awlaki was one of his trainers when he underwent al-Qaeda training in remote camps in Yemen, and that there were “informed reports” that Abdulmutallab met al-Awlaki during his final weeks of training and indoctrination prior to the attack. According to one U.S. intelligence official, intercepts and other information point to connections between the two.” (Sourced to The Times UK)
So, again, my understanding is that the administration considered themselves having reasonable certainty to consider Al-Awliki equivalent to a soldier of Al Qaeda.
Lest I be remiss, let me say how appreciative I am for EW’s timeline here. Another fine piece of work that deserves applause!
Clap, clap, clap!
There is no “al Qaeda”, except it is a CIA off the shelf self sustaining mercenary army. Was Al Qaeda one of the secret armies Ollie North and Admiral Poindexter created, as were the Contras? Perhaps someday we will discover that although it could be “confusing”.
Undie was in “training”? What kind of training? Was he practicing how to go to the bathroom with an Undie bomb in his undies. That could be awkward. Was Undie practicing how to sneak aboard Flight 253? No, “security authorities” cleared him because Undie had a Handler, who should have been arrested and photographed at the Airport security. Handler remains at large. Should not Handler be targeted with a Drone?
Underwear Bomber Conspiracy was obviously a very sloppy False Flag Op, or worse, intended to start a new War and sell Skeletor’s X-ray cancer machines.
Perhaps, but the administration’s position is:
a) Al Qaeda, while being somewhat nebulous (by design), does indeed exist.
b) The Undie bomber was trained, equipped and got his orders by people who consider(ed) themselves part of Al Qaeda, e.g. Al-Awlaki.
Maybe the government is lying about that, but that’s their case.
It sounds like you have a relatively low bar for evaluating evidence, especially “evidence” (often mere allegations) from the administration. We have a higher standard for evidence here.
Bob in AZ
I don’t see exactly where in that post you’re replying to you found me opining on the persuasiveness of evidence (that Al-Awlaki was an Al Qaeda operative – i presume that’s what you’re referring to).
I never did.
The administration hasn’t released any evidence for public review – they’ve only alluded to it’s existence and described what they think it means. I tend to give the administration the benefit of the doubt on their interpretation of intelligence, interrogations with Undie Bomber, etc. You’re perfectly free to feel otherwise.
But there’s no onus on the administration to prove anything. Again, in conventional warfare an enemy soldier doesn’t have a right to have his enemy status tried before being killed on a battlefield. Someone takes a look at his uniform and decides whether to pull the trigger. In the case of Al Qaeda there’s no uniform to go by, which means that the objective is to find a reasonable process to determine whether someone is a combatant by some other means.
My interest is rather in there being clear criteria on under what circumstances an individual on foreign soil is determined to be an Al Qaeda combatant, there being some mechanism for auditing these decisions and some common sense checks to prevent abuse (not necessarily subject to public review). Etc.
Therefore, I think the administration should release the memos with the reasoning behind the Al-Awlaki decision and go public with as much of the process they have in place they feel they can. But that’s about it for me. Beyond that I’m willing to defer judgement to them.
@Danny: You are doing a false analogy as your WWII example isn’t a targeted killing as the soldier pulling the trigger would have no idea they’re killing a US citizen. Back during WWII the US couldn’t go and intentionally target US citizens it believed were Nazis.
If the government believes someone is a traitor, that is actually the only crime explicitly spelled out in the Constitution and that would apply to suspected Nazis, suspected Al Qaeda, etc who are citizens.
The Constitution is very specific on treason with it being aiding/fighting for our wartime enemies:
“Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”
So are ‘Al Qaeda soldiers’ not levying war against the US? Or is Al Qaeda not an enemy of the US? Unless you can prove there is no war against Al Qaeda or that the Obama administration is friends with Al Qaeda, you’re own arguments are in fact an indictment against Holder and the Obama administration for their unconstitutional actions.
Nah, it would have been just as o.k. or not o.k. to shoot him, had your hypothetical U.S. grunt known. Or is your position that our hypothetical grunt would have to wait for amerikraut to fire the first shot before he was allowed to return fire? Also, you pretty much disproved that the civil war could ever have happened, didn’t you champ? Corollary: the rest of your musings are irrelevant, again because the only people that can be found guilty of treason are people in custody, e.g. P’soW etc; not combatants on a battlefield. The latter are shot at.