The Obama administration responded forcefully to the lawsuit, invoking an argument that was used throughout the Bush administration to quash lawsuits seeking to hold Donald Rumsfeld and other officials liable for their role in extrajudicial killings, torture and extraordinary rendition: the military and state secrets “privilege.” Justice Department lawyers asked the judge to dismiss the case on other grounds, but said the court should use the “state and military secrets privilege” if all else failed, saying it would be “necessary to protect against the risk of significant harm to national security.” Awlaki’s lawsuit, Assistant Attorney General Tony West argued, “puts directly at issue the existence and operational details of alleged military and intelligence activities directed at combating the terrorist threat to the United States.” He characterized the case as “a paradigmatic example of one in which no part of the case can be litigated on the merits without immediately and irreparably risking disclosure of highly sensitive and classified national security information.” He referred to Awlaki as “an operational leader of AQAP.”
The government submitted sworn declarations from Panetta, Gates and Clapper asserting the State Secrets Privilege and outlining the threat to national security they believed would be posed by litigating the case. Panetta wrote that he was invoking state secrets “to protect intelligence sources, methods and activities that may be implicated by the allegations in the Complaint” and argued that if he revealed the basis for invoking that privilege, it could harm “US national security.” Gates asserted that “the disclosure of intelligence information related to AQAP and Anwar al-Aulaqi would cause exceptionally grave harm to national security” and that the US military “cannot reveal to a foreign terrorist organization or its leaders what it knows about their activities and how it obtained that information.” In essence, the government was asserting that it had the right to kill a US citizen but that the justification for doing so was too dangerous to reveal to the American public.
Awlaki’s lawyers responded, charging:
The government’s sweeping invocation of the state secrets privilege to shut down this litigation is as ironic as it is extreme: that Anwar Al-Aulaqi has been targeted for assassination is known to the world only because senior administration officials, in an apparently coordinated media strategy, advised the nation’s leading newspapers that the National Security Council had authorized the use of lethal force against him.... Had the government itself adhered to the overriding secrecy concerns so solemnly invoked in its pleadings, those senior officials would not have broadcast the government’s intentions to the entire world, and intelligence officials, speaking on the record, would have refused all comment rather than providing tacit acknowledgement that Plaintiff’s son is being targeted.
They asserted: “The government has clothed its bid for unchecked authority in the doctrinal language of standing, justiciability, equity, and secrecy, but the upshot of its arguments is that the executive, which must obtain judicial approval to monitor a U.S. citizen’s communications or search his briefcase, may execute that citizen without any obligation to justify its actions to a court or to the public.”
INSIDE THE WHITE HOUSE, the Obama administration had already been preparing its own legal framework for killing one of its own citizens. Although the government’s threat to kill Awlaki was met with almost no outrage or questioning from the US Congress, those in the administration knew that once they killed Awlaki, the case would almost certainly end up back in court. Senior administration officials began leaking intelligence they claimed to have on Awlaki to journalists—intelligence that indicated that Awlaki had become operational and was actively engaged in plots to attack the United States, including with biological and chemical weapons.
The administration had already determined it intended to assassinate Awlaki, and President Obama wanted to be able to argue to the American people that it was the right decision. The State Department’s senior legal adviser, Harold Koh, wanted to lay out the case publicly before Awlaki was killed. He was tired of hearing scathing criticisms of the targeted killing program from European diplomats and human rights groups. In an earlier life, Koh had been known as a liberal, pro–human rights, pro–civil liberties lawyer, and so his stamp of approval was useful to the administration as it sought to defend its assassination policy in general—and bolster its decision to target a US citizen without trial.
The White House also believed a public defense of the program from Koh would be a strong preemptive strike against the critics. “The military and the CIA, too, loved the idea,” reported Newsweek correspondent Daniel Klaidman, author of the book Kill or Capture, about the targeted killing campaign. “They called the State Department lawyer ‘Killer Koh’ behind his back. Some of the operators even talked about printing up T-shirts that said: ‘Drones: If they’re good enough for Harold Koh, they’re good enough for me.’”
In advance of his public speech, the CIA and military gave Koh access to their intel on Awlaki. Koh settled in for a long day of reading in a Secured Classified Intelligence Facility. According to Klaidman, whose book was based almost entirely on leaks from administration officials, Koh
had set his own legal standard to justify the targeted killing of a US citizen: evil, with iron-clad intelligence to prove it. It was not exactly a technical, legal standard but it was a threshold he was comfortable with. Now he was reading about multiple plots to kill Americans and Europeans, all of which Awlaki had been deeply involved in at an operational level. There were plans to poison Western water and food supplies with botulinum toxin, as well as attack Americans with ricin and cyanide. Awlaki’s ingenuity at coming up with newer, deadlier plots was chilling. Koh was shaken when he left the room. Awlaki was not just evil, he was satanic.
When Koh delivered his speech, on May 25, 2010, he declared, “US targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles, comply with all applicable law, including the laws of war.” Koh’s audience for the address was the annual convention of the American Society of International Law. He gave a full-throated defense of the administration’s targeted killing police, saying:
Some have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing. But a state that is engaged in an armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force.... Some have argued that our targeting practices violate domestic law, in particular, the long-standing domestic ban on assassinations. But under domestic law, the use of lawful weapons systems—consistent with the applicable laws of war—for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute “assassination.”
Nasser Awlaki’s lawyers did not take the position that Anwar Awlaki was an innocent man. Rather, they reasoned, if he was what the US government alleged he was—a terrorist and an operational member of al Qaeda—evidence should be presented that would hold up in a court of law. If what the administration was leaking to journalists about Awlaki’s deep involvement in terror plots, including chemical attacks against the United States, was true, then why not indict Awlaki and demand his extradition from Yemen to face trial? “If someone poses a threat, if there’s evidence against him, fine, charge him and give him due process,” said Kebriaei, one of Awlaki’s lawyers. “The president and the Defense Department or CIA, cannot just, on their own, determine in secret that these people are threats and we can not only detain them, but we can kill them.”
The administration continued to leak intelligence it claimed proved Awlaki was an operational member of al Qaeda, and media coverage began referring to Awlaki as a leader or the leader of AQAP. When Awlaki’s lawyers tried to challenge in court the government’s claims that he was a leader of AQAP and was operational, the US government lawyers shut it down. The government�
��s “attorney did walk into court and open with: ‘The context of this case is that we’re talking about a leader of AQAP and everything else is a state secret. We can’t talk about the evidence, but you should know,’” Kebriaei recalled. “It can be maddening to hear the government make allegations that are completely unsupported by any real facts that we’ve seen and not have any access to that information, to be in this position of seeing that reporting [in the press] and not being able to respond. The Bush administration claimed a global detention authority in the context of this war on terror, and what the Obama administration is doing is actually extending that and claiming a global killing authority,” including the right to kill American citizens.
ANWAR AWLAKI, meanwhile, was spending his days and nights on the run. He knew the Americans were actively trying to kill him. He would see drones and occasionally see missiles strike nearby. Awlaki had certainly become increasingly radical in his views of the United States, but from his perspective, it was America that had changed, not him. Not that long before, Awlaki had advocated voting for George W. Bush and praised America’s freedoms. He spoke with passion when he condemned al Qaeda and the 9/11 attacks, and talked of Muslims peacefully coexisting with the United States. But between the global crackdown that followed 9/11 and the US government’s campaign to hunt him down, something in Awlaki shifted, and he was no longer torn between allegiance to the country of his birth and his religion. “To the Muslims in America I have this to say: how can your conscience allow you to live in peaceful co-existence with the nation that is responsible for the tyranny and crimes committed against your own brothers and sisters? How can you have your loyalty to a government that is leading the war against Islam and Muslims?” Awlaki asked in one of his audio messages posted online. “Imperial hubris is leading America to its fate: a war of attrition, a continuous hemorrhage that would end with the fall and splintering of the United States of America.”
Johari Abdul Malik, who succeeded Awlaki as imam of Dar al Hijrah mosque in Virginia, was dumbfounded. He remembered Awlaki as a moderate and as a Muslim leader who bridged two worlds deftly. “To go from that individual to the person that is projecting these words from Yemen is a shock,” he said. “I don’t think we read him wrong. I think something happened to him.”
“Martyrdom Is Why We Came Here, My Brother”
YEMEN, 2009–2010 —Early on in his stay in Yemen, Samir Khan lost his mobile phone. Such things happen to tourists and students the world over. But the stakes were higher for Khan. His phone was his only way of communicating with the people he had come to Yemen to find: the mujahedeen. Khan had the mobile number of a man he had been told could put him in touch with AQAP, and the two men had been texting and making plans to meet when Khan’s phone went missing. The young Pakistani American panicked. “He was heartbroken, as this was the only means of communication between him and the mujahideen,” recalled his friend Abu Yazeed, a self-professed jihadist. “Despite that, he never thought about turning back.” Khan went to mosques hoping to find someone who could reconnect him. One night he was performing Ishaa, the evening prayer, when he felt a tap on his shoulder. “Are you Samir?” the man asked him. Khan nodded. “I am the brother to whom you have been texting,” the man told him. Soon thereafter, Khan was packing his bags, leaving behind Sana’a and any pretense that he was there to teach English or study Arabic at one of its universities. He was on his way to study jihad with mujahedeen, who would embrace him as one of their muhajireen, or emigrants.
Khan felt he had been in the car “for what seemed like years,” heading over the rough roads that one must cross to get from Sana’a to southern Yemen. The driver dispatched to take Khan to a mujahedeen camp had a nashid, a hymn, playing on repeat. It was called “Sir Ya Bin Laden.” Khan had heard the homage to bin Laden before, but now that he was on his way to meet the warriors from AQAP, it had taken on a new significance. “Something had struck me at that moment. The nashid repeated lines pertaining to fighting the tyrants of the world for the purpose of giving victory to the Islamic nation. But it also reminded the listener that Shaykh Usama bin Ladin is the leader of this global fight,” Khan recalled in an essay he wrote several months later. “I looked out the window at the tall mud houses below the beautiful sky and closed my eyes as the wind blew through my hair. I took a deep breath to let it all out.” He thought, “I am an individual convinced that Islam’s claim to power in the modern world is not going to be as easy as walking down a red carpet or driving through a green light. I am acutely aware that body parts have to be torn apart, skulls have to be crushed and blood has to be spilled in order for this to be a reality. Anyone who says otherwise is an individual who is not prepared to make sacrifices that heroes and champions make.”
As they got closer to the camp, Khan gazed out the window at the rural landscape. “As my eyes passed over the mysterious twirls of the sand dunes, I was reminded of the enigma of jihad in the contemporary world. It’s just absolutely enthralling to know that guerrillas can fight off global superpowers with the bare minimum resulting in great enemy losses, drainage of the enemy’s economy and a rising popular support for the mujahidin.”
Back in North Carolina, FBI agents showed up at Khan’s house. “They came to know that Samir had left for Yemen,” recalled his mother, Sarah Khan. “And they were asking how he went there and things like that, and if we have any contact with him. They were questioning us about [Samir] going to Yemen.” The agents asked the Khans “whom he’s been in contact with over there and stuff like that. We had been seeing different situations that had been appearing in the news, online and the papers about how the FBI has been keeping a tab on Muslims, so, we thought it was just one of those things.” Sarah Khan had watched the news about the US cruise missile strikes in Yemen and the “underwear bomb” plot. As a parent with a son they believed was studying in Yemen, she told me, “of course it was very scary. It was a very scary moment for us.” But, she reasoned, “Samir was at the university, so we didn’t think that he was in any danger.” But Samir was not at the university anymore. He was heading straight into the heart of an expanding US war against AQAP.
People don’t just show up at an al Qaeda camp in Yemen and be greeted with open arms. There is a vetting process. But Khan was already a known quantity through his blogs and web magazine, and AQAP’s leadership welcomed the prospect of an American jihadi among their ranks. Khan went through training in rural Yemen and was eager to see battle. “Samir’s love for Martyrdom in Allah’s sake was extraordinary,” his friend recalled. Khan once sent him a text message that read: “Martyrdom is why we came here, my brother. We won’t leave until we get what we came for.” AQAP would eventually publish photos of Khan wielding weapons and practicing hand-to-hand combat, but the mujahedeen believed that Khan’s greatest possible contribution to their cause lay in his role as a propagandist. When he eventually made it to an AQAP base, the Yemeni and Saudi jihadists he met listened to his stories of FBI surveillance and harassment by the US government. They reviewed his writings and previous work on his online magazines.
“I realized that he traveled [a] very long distance under very difficult circumstances, not to mention the fact that he was being wanted and hunted by the CIA,” recalled Abu Yazeed. “His weapons to defend Islam were very simple; a laptop and a camera. However, he was loaded with ammunition. That ammunition was the creed of jihad in Allah’s path.” Khan’s new friends found his broad, toothy smile infectious and would often ask him to laugh “in English.” They “considered him a motivation and an inspiration for them since he crossed the ocean to support Islam’s cause.”
Although Khan was enthusiastic about getting weapons training, the leadership of AQAP assigned him to its media division. They wanted his help in creating an English-language publication that could spread their message to the Muslim diaspora. It was to be a glossy, well-produced magazine called Inspire. Khan had studied Internet technology during his stint in community college back in North Ca
rolina and had already created several of his own websites, as well as an online magazine much like the one envisioned by AQAP. “After some time passed in the company of the mujahidin, I quickly acknowledged that success does not rely upon the job you undertake from nine to five, nor does it rely upon the wealth that you have accumulated, nor does it rely upon how far you have taken your studies in college. All of these things are respectable, but by being with the mujahidin, it helped open my eyes that our reason in life has nothing to do with any of these things,” Khan remembered. “The only thing in the entire world that matters to me, more than ever before, is the condition of my heart when I die.”
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