Objective Troy

by Scott Shane

  That was looking back. Looking forward, the threat from Yemen, and the capabilities of AQAP, suddenly loomed much larger, eclipsing even the old core of Al Qaeda in Pakistan. The initial interview with Abdulmutallab, together with the intelligence dossiers from multiple agencies, pointed at two men. Ibrahim al-Asiri was the diabolically clever explosives expert whose experiments had already outclassed anything seen from Pakistan. And Anwar al-Awlaki, whose power to radicalize and recruit young English speakers had already set him apart as the most dangerous of influences, now appeared to have gone “operational,” in agency lingo. It was evident, from intercepted communications, Abdulmutallab’s still-incomplete testimony, and Awlaki’s own pronouncements, that the cleric was now devoting his considerable talents and energy to plots against the United States.

  As long as all Awlaki did was talk, the agencies had merely fretted about how to counter his message. Now he had placed himself in the director’s seat in a major plot. If it were not for his American citizenship, he would automatically have joined Asiri and AQAP leaders on the government’s kill-or-capture list—on which the “capture” option was proving to be largely theoretical. But Awlaki had not lost his constitutional rights when he began plotting with Al Qaeda. A legal analysis by the Justice Department, Obama said, was already under way. Somewhere in Yemen, meanwhile, a bespectacled cleric held uncomfortable sway over Americans’ sense of security and Obama’s control of his presidency.

  They had been fortunate this time, Obama told his team. But they could not rely on bomb makers’ mistakes. The Christmas episode, coming so soon after the slaughter at Fort Hood, had begun to persuade some analysts inside the FBI and CIA that the threat from Yemen of an attack on America might have outstripped the threat from Al Qaeda’s old core in Pakistan. In AQAP, Obama faced a new mutation of the old enemy of 9/11, one that seemed to pose a double menace: stirring alienated Americans like Hasan to attack from inside the country, and dispatching foreign travelers like Abdulmutallab to bring lethal violence from afar. One name had surfaced in both cases, the name of a US citizen. At that January meeting, as he approached the end of his first year in office, Obama had an inkling of the legal and operational challenge he faced in confronting the complex threat that Awlaki posed.

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  As the spies stepped up the hunt for Awlaki, the Obama administration’s lawyers started in on their parallel project: If they located Awlaki, an American citizen facing no criminal charges, could they capture him? Could they kill him? By early 2010, American drones had already killed hundreds of people in the tribal area of Pakistan, but the answer to the US citizen question was far from self-evident. On the face of it, killing an American without first charging him with crimes and giving him a fair trial seemed problematic on several grounds. Awlaki had joined Al Qaeda, was publicly calling for the mass murder of Americans, and was actively plotting toward that goal. But did that mean he could simply be blown away on the president’s orders?

  Legal questions involving national security were generally hashed out by what was called “the lawyers’ group”—the Obama-appointed general counsels of the Defense Department, the CIA, and the other intelligence agencies. They gathered for regular White House meetings with the National Security Council’s legal adviser, Mary B. DeRosa, who had held the same job for a time under Clinton. When the executive branch faced an especially important and disputable legal question, however, it turned to the Justice Department’s Office of Legal Counsel for a formal, written legal opinion. The OLC, a familiar abbreviation inside the government, had been quite obscure to the general public for most of its existence. But it had become known—indeed, notorious—in the middle of George W. Bush’s presidency, when its legal opinions on torture became fodder for news stories and drew the opprobrium of many scholars. The main author of the most controversial opinions had been John C. Yoo, a young, conservative professor who went on leave from Berkeley’s law school to serve in the Bush OLC. They were signed by Jay S. Bybee, the head of the office, whom Bush later named to a federal appeals court.

  The classified 2002 opinions on torture found that a long list of interrogation methods proposed for use by the CIA on Al Qaeda suspects did not constitute torture and were lawful. Like other opinions crafted in the first years after 9/11 by John Yoo and his colleagues, the torture opinions were based on an expansive interpretation of presidential power. A president in wartime needed the freedom to do whatever it took to keep the country safe, and the Constitution gave him that sweeping power, Yoo believed. But anyone who did even an hour’s research on waterboarding, the most extreme of the approved methods, found ample reason to question the Justice Department opinion. Waterboarding, in which a cloth was placed over a person’s mouth and nose, and water was poured over it to produce a feeling of suffocation, had been a favored technique of torturers from the Inquisition to the Cambodian dictator Pol Pot. American military and civilian authorities had previously prosecuted its use as a crime. How could a legal opinion overcome that dark history?

  Indeed, the torture opinions were withdrawn by Bybee’s successor as head of the OLC, Jack Goldsmith, who found them poorly reasoned and far too sweeping. The memos were repudiated by Obama when he took office, along with all the other Bush-era legal opinions on interrogation. In the view of their critics, who were legion, the Bush torture memos had become an infamous example of dangerously sloppy and reckless legal advice.

  Among the most outspoken of their critics were two law professors who had built their public reputations partly on their scathing analyses of the Yoo torture memos and other Bush-era OLC opinions on national security: David J. Barron and Martin S. Lederman. Barron had clerked for Justice John Paul Stevens of the Supreme Court and had joined the faculty at Harvard Law School. Lederman had worked as a litigator in Washington, taught at Georgetown, and become a hyperactive blogger on national security law. Both men had worked for the OLC in the Clinton administration, and both found the more extreme OLC opinions under Bush repellent. In 2008, in the midst of the presidential campaign, they collaborated on a two-part tour de force in the Harvard Law Review called “The Commander in Chief at the Lowest Ebb.” It was a deeply scholarly analysis with little of the wit and acid of Lederman’s blog posts. But for students of the battles over the Bush administration’s legal opinions, it was a devastating attack on the overreach of the OLC in his first term.

  After a march through presidential history from George Washington on, bolstered by hundreds of footnotes, Barron and Lederman portrayed the Bush presidency in the national security realm as essentially lawless. The Bush administration, they wrote, “claimed that the President could disregard an array of important statutes and treaties—from the Torture Act to the Habeas Act of 1867; from the Foreign Intelligence Surveillance Act even to the War Crimes Act; and more—if they happened to interfere with the manner in which he concluded the conflict against Al Qaeda should be prosecuted.”

  It was a harsh verdict, but one that coincided with the rhetoric that Obama was using on the campaign trail when the article was published. When he took office a few months later, he immediately appointed Barron and Lederman to the OLC, as the deputies to Dawn Johnsen, another Clinton OLC veteran and fierce Bush critic. When Johnsen’s confirmation was blocked by congressional Republicans, Barron was left as the acting head of the office and Lederman as his deputy. After the Christmas airliner attack, as Awlaki’s role in the plot became clear and the White House sought legal advice on whether he could be killed, the assignment went to none other than Barron and Lederman. The matter was urgent, the lawyers were told. If American intelligence suddenly got word of Awlaki’s whereabouts, counterterrorism officials would not want to wait while Barron and Lederman polished up a learned treatise on targeted killing.

  The turn of history was exquisitely ironic. The law professors who had once bathed in lavish praise from critics of President Bush on the left now were under scrutiny themselves. Torture and targeted killing were by no means equiva
lent: torture is always a heinous crime, while targeted killing can be legal under both domestic and international law. But the parallel was unmistakable nonetheless. The Bush administration had sought OLC approval to take extreme measures it claimed were justified by the dire threat of terrorism. Now the Obama administration was seeking legal approval for its own extreme measure in the face of the terrorist threat: hunting down and killing an American citizen, on the basis of secret intelligence, without charge or trial. The question went to the heart of the debates over presidential power, constitutional rights, American values, and government secrecy that had so bedeviled the Bush lawyers.

  At the Justice Department, Barron and Lederman asked the intelligence agencies for every piece of evidence they had about Awlaki, what he had done and what he planned to do. Under conditions of the most extreme secrecy, they began their work.

  2

  YOU ARE STILL UNSAFE

  From his shifting hideouts in Yemen’s badlands, Anwar al-Awlaki had followed the tumultuous events of November, December, and January as best he could. With the Americans after him, he stayed on the move through the tribal provinces, mainly Shabwah province, where his family had deep roots. Sometimes he bedded down in a tent. He avoided phones and used the Internet only to send encrypted e-mails. Longer communications, including audio and video messages to his followers, he encrypted and saved to a flash drive, handing the tiny storage device to a trusted supporter, who would pass it to a string of couriers, who would deliver it to a trusted ally, often in Sanaa. It was agonizingly slow for a blogger who had grown accustomed to reaching his audience at the click of a mouse. But he wanted to stay alive.

  After the American strike of December 24 destroyed a house where leaders of Al Qaeda in the Arabian Peninsula (AQAP) had met, Awlaki sent a friend an encrypted message expressing relief that he had escaped the missiles in time. “Phew. Maaaaaan—that was close,” he wrote, showing off his command of American slang. Late on December 25, Yemen time, the news of another near miss, aboard the airliner above Detroit, was all over the shortwave radio channels that could reach even the remote hills where he was living. But neither the missiles that had missed him nor the failure of his young Nigerian fan to bring down the aircraft slowed him down. He was using a complicated set of coded messages to consult a militant in the United Kingdom who worked at Heathrow about how to get bombs past airport security. Most important, he was working on getting a new, long message out to his followers, one that would show he was still in business, express defiance to Obama, and rally support for jihad.

  At the age of thirty-eight, Awlaki had rather suddenly emerged, in the view of a growing number of counterterrorism analysts inside the government, as the single most dangerous threat to the United States. He was an ambitious man who had followed a wandering path, considering or trying out several conventional career paths: engineer, American imam, post-9/11 peacemaker, Yemeni education professor, entrepreneur. But now he had found the fame he craved. For several years, his lectures and sermons had turned up repeatedly on the laptops of Western Muslims caught plotting violence in the name of jihad. With the Christmas airliner attack, he had moved decisively from preaching to acting, becoming the central figure in AQAP’s efforts to target the United States.

  Not so long before, a renegade cleric hiding out in the rugged tribal lands of Yemen would have been hard put to reach anyone beyond a handful of local villagers with his pronouncements. The idea that such a person in such a place could unnerve a superpower—or even get noticed by an American president—would have seemed preposterous.

  But the twenty-first century had provided an electronic soapbox of extraordinary reach. Osama bin Laden had helped pioneer the use of the Internet to promote violent jihad, but his web performances were in Arabic and favored obscure poetry and high-flown rhetoric that sometimes bordered on the incomprehensible, especially to Western audiences. Even in 2010 he was still heard from on occasion, but his messages smacked of desperation, a plea that he was still relevant. A month after the Christmas airliner attack, long after the world knew that it had been planned and launched from Yemen, a message from Bin Laden implausibly claimed credit for the plot. Shortly after that, another quixotic message from Al Qaeda’s founder lambasted America for its inaction on climate change, not previously a top jihadi priority, and called for a worldwide boycott of American businesses and of the dollar. Bin Laden’s place in history was secure, but that was the point—his place was in history. In the years immediately after 9/11, the world had anxiously attended to his messages. But by decade’s end he had the slightly pathetic sound of an aging pop star, well past his prime but still pretending to popularity.

  By contrast, Anwar al-Awlaki, fourteen years younger, was the rising idol, preaching an ideology indistinguishable from Bin Laden’s but in a refreshingly blunt, clear, and informal style. His usual choice of English limited his influence in the Arab world, but it gave him the same international appeal that made Apple and Toyota borderless brands. He addressed English-speaking Muslims in the West as an imam who knew from experience their lives and insecurities. The fact that he had been imprisoned for eighteen months in Yemen, and his notoriety in the American media after Fort Hood and the airliner attack, only burnished his appeal to followers. They believed he was speaking Islamic truth to infidel power.

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  So when Awlaki released a twelve-minute “Call to Jihad” in mid-March of 2010, he had the attention of the global media and plenty of young Western Muslims—not to mention a small army of American intelligence analysts. (A year earlier, in one of his most popular tracts, Awlaki had offered the sarcastic lament that “the only ones who are spending the money and time translating Jihad literature are the Western intelligence services.” Unfortunately, he added, “They would not be willing to share it.”) Recording his message in one of Al Qaeda’s mud-brick safe houses in Shabwah’s hills, to be dispatched via courier to sympathetic webmasters, he mounted an Internet podium not so inferior to that of the American president, and he knew how to use it. His audio message was excerpted on CNN and posted in full on jihadist forums, from which it spread virally across the web.

  Awlaki had first recorded his inflammatory message on video, donning a green military camouflage jacket over traditional Yemeni garb—a signal that he, too, was at war. But the world’s most powerful country was looking for him, and perhaps in an abundance of caution he sent out only an audio recording. The video version, which might have given the high-tech American hunters more clues to his location, would only come to light two years later.

  The recording was a sinister rhetorical masterpiece. It was his fullest and clearest articulation so far of his advocacy of mass violence against the United States, a window on his political and religious appeal as he defied the American military and intelligence juggernaut now on his trail. To consider it in detail is to understand why this voice truly worried the White House.

  As usual, Awlaki’s argument was relentlessly logical, his tone cocky but conversational. He trumpeted the “operation” of “brother Umar Farouk”—his protégée Umar Farouk Abdulmutallab—gloating that an attack costing a few thousand dollars had penetrated a $40 billion counterterrorism shield. The power of his boast was that it was no extremist fantasy; it matched Obama’s own chagrined conclusion about the near disaster. Still, Awlaki deftly turned what was, after all, a flubbed attack by Al Qaeda into a symbol of American impotence, aiming his sarcasm directly at Obama, whom he pilloried as an impotent successor to Bush:

  So if America failed to defeat the mujahedeen when it gave its president unlimited support, how can it win with Obama, who’s on a short leash?

  If George W. Bush is remembered as being the president who got America stuck in Afghanistan and Iraq, it’s looking like Obama wants to be remembered as the president who got America stuck in Yemen. Obama has already started his war on Yemen by the aerial bombings of Abyan and Shabwah.

  By doing that he has waged a publicity campaign f
or the mujahedeen in Yemen and within days accomplished for them the work of years. As the popularity of mujahedeen in Yemen skyrocketed the popularity of Obama in America is plummeting.

  Awlaki knew exactly which American buttons to push. He knowingly echoed the Cheney critique, mocking Obama’s “short leash” after the cowboy aggression of the Bush era. But he also seized upon the recent strikes in Yemen’s tribal provinces of Abyan and Shabwah to show that Obama had not fundamentally changed the Bush policies, playing on the disappointed hopes of many Muslims in Obama’s first year. And he played on American war weariness, stoking the justified fears of American officials that air strikes, especially when they were as botched as the December 17 cruise missile strike that had killed some forty-one civilians, could boost support for Al Qaeda.

  Awlaki linked Al Qaeda’s narrow ideological struggle and the atrocity of 9/11 to broader resentment of the American superpower. And though Abdulmutallab had told the FBI that the date of his fizzled bombing had been happenstance, not a deliberate choice, Awlaki exploited the particular resonance of the Christmas holiday: