by Scott Shane
But Dr. Awlaki refused to give up his fight to save his son. The new American reports that Obama had approved the killing of Anwar al-Awlaki, based on leaks from anonymous officials, spurred Nasser al-Awlaki to join a new, more aggressive effort to defend his son. He joined forces with attorneys from two groups that shared his dismay over the Obama administration’s decision to target an American citizen for death. The American Civil Liberties Union and the Center for Constitutional Rights made his campaign more than the understandable effort of a father to save his son; now it was a highprofile battle over fundamental rights. Jameel Jaffer and Ben Wizner of the ACLU had traveled to Sanaa in May 2010 to consult with Nasser. They agreed to represent him on July 7, and on July 16 the Treasury Department formally labeled Anwar al-Awlaki as a “Specially Designated Global Terrorist.” Government officials insisted that the designation was merely another justified step in the attempt to isolate and neutralize Awlaki. The ACLU lawyers believed that Obama administration officials had made the move to block, or at least delay, their plan to file a lawsuit for Dr. Awlaki on his son’s behalf: to represent a designated terrorist might now require a special license from the Treasury’s Office of Foreign Asset Control. After a court challenge, Treasury officials agreed to change the rules to permit uncompensated legal representation for people on the terrorist list. On August 30, Nasser al-Awlaki filed suit against the American officials pursuing his son: Barack Obama; Leon E. Panetta, the CIA director; and Robert M. Gates, the defense secretary.
The government was trying to kill an American citizen, the lawsuit alleged, without any criminal charge, without making public its evidence against him, without any trial to weigh whatever evidence it might have. Dr. Awlaki’s lawyers essentially argued the opposite of everything that Barron and Lederman had concluded in their still-secret legal opinions. Killing Awlaki, they contended, would flagrantly violate the Fourth Amendment, the Fifth Amendment, and international law. As so-called next friend of his absent son, Nasser al-Awlaki argued that “means other than lethal force could reasonably be employed to neutralize” any threat posed by Awlaki—in other words, capture was feasible.
When the case came to a hearing before District Judge John D. Bates in Washington, Justice Department attorneys advanced three points: the plaintiff lacked standing to bring the claim; the question of whom to kill was a “political question,” to be decided solely by the executive and legislative branches; and such matters were in any case far too sensitive to be discussed in open court. (Gates, Panetta, and James Clapper, the director of national intelligence, had all filed statements asserting that a full hearing for the lawsuit would expose important secrets.)
For nearly three hours on a Monday in November 2010, in a Washington courtroom packed with rapt lawyers and law students, the two sides went at it in a case that Judge Bates called “extraordinary and unique.” Nasser al-Awlaki’s case was laid out by Jameel Jaffer of the ACLU. A Canadian from a Muslim immigrant family, Jaffer, like Obama, had graduated from Harvard Law School. He had joined a Wall Street firm, but after volunteering to represent immigrants detained after 9/11 he had gone to work for the ACLU full time. Now he staked a stark constitutional claim: “If the Fourth and Fifth Amendments mean anything at all, surely they mean there are limits to the circumstances in which the government can use lethal force against one of its own citizens.” If that’s so, Jaffer said, “the courts have a role to play in delineating those limits and ensuring that they’re complied with.” Jaffer’s cocounsel from the Center for Constitutional Rights, Pardiss Kebriaei, said that the Justice Department’s argument that the government could kill an American with absolutely no role for the courts was “terrifying.”
Judge Bates put the Justice Department’s lawyer, Douglas Letter, through his paces, pressing him to explain one of the commonsense paradoxes the case raised. “How is it that judicial scrutiny is required when the United States decides to target a US citizen overseas for electronic surveillance,” Judge Bates asked, “but judicial scrutiny is prohibited, in your view, on the political question doctrine, when the United States decides to target a US citizen overseas for death? How does that all make sense?” In other words, how could a court warrant be required for eavesdropping on Awlaki’s cell phone but not for dispatching a drone to kill him?
Letter suggested that the apparent illogic was superficial: In an eavesdropping case, he told the judge, “You’re not being asked to stand at the shoulder of the president as the president is trying to decide, is there an imminent threat to the security of US nationals posed by the leader of a highly active terrorist organization?” That role, he argued, is reserved for the commander in chief without court interference.
But perhaps Letter’s most telling point, which he said went “to the very strangeness of this suit,” hinted at the father-son drama that had unfolded, mostly in private, for years. Anwar al-Awlaki “is urging people to die in an effort to kill Americans, and at the same time is repudiating the power of the US courts,” Letter said. “And yet his father is here trying to use the US courts in a way that would allow Al-Awlaki to continue acting as a leader of an organization that is actively engaged in trying to kill Americans.”
The contradiction appeared to trouble Judge Bates, too. Anwar al-Awlaki “doesn’t respect the US court system,” the judge said. “He doesn’t think it has any jurisdiction over a Muslim. How can one conclude that he would believe that the US court system should be a vehicle for assessing his rights?”
That question turned out to be decisive when Judge Bates dismissed the lawsuit with an eighty-three-page ruling in December. He did not shy away from the stark questions raised by sending the drones after an American. “Can the Executive order the assassination of a U.S. citizen,” Bates wrote, “without first affording him any form of judicial process whatsoever, based on the mere assertion that he is a dangerous member of a terrorist organization?” His answer was yes on two grounds, even as he acknowledged that his conclusion was “somewhat unsettling.” First, there was no evidence that Anwar al-Awlaki supported his father’s lawsuit and plenty of indirect evidence that he did not. The younger Awlaki had managed to put out jihadist screeds urging the murder of Americans, the judge noted, so he certainly could have smuggled out a statement of support for his father’s lawsuit. Under the circumstances, Nasser could not serve as “next friend” in challenging his son’s placement on the government’s kill list. Second, Bates accepted the government’s assertion that, at least in this case, such a targeting decision must be reserved for the executive branch, leaving no place for judicial review. He declined to rule on the government’s state secrets claim.
Whether Anwar took note of the lawsuit his father had filed to save his life, or of its dismissal, was unclear.
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If there was a sign of trouble regarding Obama’s judgment about the targeted killing program—an unsettling hint of how comfortable he had become with the lethal power he was wielding—it had come on Saturday, May 1, 2010, at the White House Correspondents’ Association Dinner, a Washington tradition in which reporters donned tuxedoes and invited some of the government officials they covered to a banquet where the president spoke. It was always a lavish scene that made some journalists, including me, uneasy; The New York Times management had decided in 2007 that the coziness with officials was unbecoming and banned our participation. In his remarks that night, Obama noted that the Jonas Brothers, the boy band of the moment, were in attendance and offered a conventional protective-dad joke. “Sasha and Malia are huge fans,” said the president of the United States, “but boys, don’t get any ideas. I have two words for you: Predator drones. You will never see it coming.”
In the sixteen months since Obama had taken office, the CIA had carried out more than eighty drone strikes in Pakistan, including five in the previous month, and the pace was increasing. Along with five hundred to seven hundred militants, independent observers counted fifty to two hundred civilians killed on his watch, includi
ng as many as two dozen children. American officials, speaking anonymously, claimed that such estimates of the civilian toll were exaggerated, but anger in volatile Pakistan was growing. To joke so casually and publicly about lethal Predator strikes—especially when real strikes were treated by the administration as too sensitive for public discussion—seemed in stunningly bad taste, as some White House officials would later acknowledge. The joke had been written for Obama, of course, but he had apparently not judged it problematic. For a president who had often spoken to aides about the moral burden of drone strikes, it seemed incongruous.
The news from New York City that very Saturday night would underscore the point. About three hours before the president’s 10 p.m. remarks in Washington, a Times Square vendor spotted smoke coming from a Nissan Pathfinder parked on the street with the engine running but no one inside. He hailed a mounted police officer, who summoned an explosives team. Some fifty-three hours later, counterterrorism officers stopped a flight on the runway at JFK International Airport and pulled off the plane a Pakistan-born American citizen who had graduated from college in Connecticut, worked as a financial analyst for a cosmetics firm, and married and started a family. Faisal Shahzad, thirty years old at the time of his arrest, would later explain his reasons for attempting the bombing, which he had believed would kill at least forty people. The United States had attacked Islam again and again; he was merely fighting back, he said in remarks at both his guilty plea and his sentencing. He singled out the drones as a big part of his motive. “Until the hour the US…stops its drone strikes in Somalia and Yemen and in Pakistan,” Shahzad said, “we will be attacking US, and I plead guilty to that.” When the judge pressed him about whether his plot might have killed children, he replied: “When the drones hit, they don’t see children.” Obama had vowed to stop torture and shut Guantanamo because, he said, they had become a recruiting tool for Al Qaeda. Now there was stark evidence that the drones were doing the same thing.
It came as no surprise when Shahzad told FBI agents that he had been inspired to act in part by the online tutelage of Anwar al-Awlaki. “When I watched Anwar Awlaki on video, I thought he was talking to me,” he told investigators. If Obama needed a reminder about the deadly serious balancing act he had embarked on with his embrace of the drone, Shahzad would supply a memorable case study. And if the intelligence agencies required an incentive to accelerate their hunt for Awlaki, the Times Square near miss provided that as well.
PART FOUR 2010–2014
11
THE GUY EVERYONE WANTED TO FIND
In his self-imposed exile in Shabwah, his family’s ancestral territory, Awlaki had spent much of his time in 2009 at the mosque in the hamlet of Al Saeed, as a leader of prayers and an informal adviser to the impoverished families trying to scratch a living from an unforgiving land. According to his uncle, Saleh bin Fareed al-Awlaki, who saw him there from time to time, “He’d go five times a day to the mosque. At four o’clock in the morning he’d be at the mosque, at sunrise, then maybe he goes home and again at midday.” In addition to preaching, Bin Fareed said, his nephew made himself available for consultation. Awlaki, after all, was an educated man from a prominent family, the kind who ordinarily would live in Sanaa or overseas, far from the deprivations of the village. “He’d sit most of his time in the mosque. People would ask him questions—people would have family problems, children problems, and they would ask him, and he would advise them what to do.” His father was supporting him financially, Bin Fareed said, but he seemed to have no long-term career plan. “He was stuck,” Awlaki’s uncle said.
In fact, while he may not have been confiding in his uncle, he was not at all stuck. Awlaki was reaching out regularly via his blog, Facebook page, and e-mail to Muslims far beyond the Shabwah village where he had sought refuge with his family’s tribe. With the help of technically minded allies and the luster added by his imprisonment, he was projecting a steadily more violent message to Muslims across the English-speaking world. To his family, he may have looked like a failure, thwarted in conventional career plans and hounded out of America, out of England, and finally out of Sanaa. But his modest surroundings did not deter his vision or ambition. In February 2009, he sent the two e-mails to Major Nidal Hasan, who had written him repeatedly, in part to solicit his theological judgment on American soldiers who attacked fellow soldiers to prevent them from fighting Muslims abroad. On March 1, 2009, in a telephone address to an Islamic gathering in Pakistan, he struck a grand, prophetic chord. The world was “on the verge of a Muslim revival,” he told his audience. The last caliphate, or transnational Muslim government, had officially ended with the fall of Ottoman Turkey in 1924, he said, and history showed that Islamic awakenings came roughly every one hundred years. Echoing George W. Bush, he declared that “there are forces of good and there are forces of evil and they are conflicting with each other.” In effect, Awlaki said, you are either with us or you are with the infidels. Though neither the West nor the hypocritical leaders of Yemen and Pakistan wanted to hear it, he said, the key to the revival was jihad—and not jihad as apologists for the United States were trying to redefine it.
“Forget about those who try to twist the meaning of jihad to exclude fighting,” Awlaki told his Pakistani audience. “Forget about those who say this is not the time for jihad because we are weak. Leave them alone and fulfill your duties toward Allah.” In the Koran, Allah had addressed “the might of those who disbelieve,” and that currently took the form of American soldiers with “their high-tech weaponry and their advanced missiles,” he said. “So how can we restrain their might? Is it through negotiations? Is it through giving up? Is it through surrendering?” No, Awlaki said, “Allah gives us the answer in the Koran: Fight in the path of Allah. That is how Allah will restrain the might of those who disbelieve.”
By the time of that telephone address to Pakistan in the early spring of 2009, National Security Agency (NSA) eavesdroppers were picking up regular communications between Awlaki and the leaders of the newly formed Al Qaeda in the Arabian Peninsula. How and when they first met is uncertain. Nasser al-Wuhayshi, the former Bin Laden secretary who now was the emir, or leader, of the Yemeni affiliate of the terrorist network, may have recognized in Awlaki an emerging ally and reached out; or Awlaki himself may have initiated contact with the group, whose leaders were hiding nearby in the mountains of Shabwah province or neighboring Marib. Conceivably the initial contacts may have dated back as far as 2006, when Morten Storm, the Danish convert, was surprised when Awlaki referred in conversation to “the brothers,” a phrase he believed meant Al Qaeda. Storm said Awlaki later recounted to him that he had met militants of several generations in prison who were admirers of his lectures. His social status in Yemen gave his embrace of jihad particular force, Storm told me. “He came from a rich family,” Storm said. “Most of the Yemeni mujahideen are poor—they come from the lower classes of society in Yemen. But this man, his father was rich, and he’s an American national, and he speaks English, and he’s a scholar.” Awlaki, he said, “could reach people that Al Qaeda could not. He would reach out to the foreigners. He was exactly the bridge AQAP needed to reach the West.”
However it began, the alliance between Awlaki and Al Qaeda’s branch was quite natural. By 2009, Awlaki had evolved to an open embrace of violent jihad, naming in his March 1 talk as its proper targets both the “tyrants” ruling Yemen and other Muslim countries and the “Jews and Christians” of the United States and Europe. His worldview now perfectly matched that of Al Qaeda.
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Awlaki’s deepening relationship with Al Qaeda may have contributed to another move he made in the summer of 2009—a somber request to his father. His two wives had taken turns staying with him in Shabwah, where he split his time between the provincial capital, Al Ataq, and his family’s village of Al Saeed. He had even installed a television in his apartment in Al Ataq so that his teenage second wife could divert herself in this backwater with the Turkish soap opera
s she loved. (Apparently he had learned to compromise since he had flung his roommate’s TV to the floor back at Colorado State in the first flush of his discovery of puritanical Islam nearly two decades earlier.) But now he decided that the hardship and danger, and his increasing absorption with what he saw as the duty of jihad, required a change. “He sent me a message—he said, ‘Father, consider my family is your immediate family and take care of them, because I am not able to take care of them under the circumstances,’ ” Nasser al-Awlaki recalled. Anwar’s first wife, after all, had lived with him in Denver, San Diego, Falls Church, and Sanaa, light-years economically and socially from the world of the village. “Things were difficult for his family regarding school and their living conditions,” Nasser said, and Anwar “really wanted his family to live under normal conditions, so he asked me that they should stay with me in Sanaa.” Anwar’s first wife, who was related to Nasser, took their three sons and two daughters and moved into Anwar’s apartment inside his father’s big house in the capital. The nineteen-year-old second wife, not connected with Nasser by family or tribe, evidently left Shabwah to join her extended family elsewhere in Yemen.
But Anwar was not ready to give up female companionship. Before his pregnant second wife left Shabwah, he mentioned to Morten Storm the possibility of helping him find yet another wife. His first two wives, as traditional Yemeni women, could not be expected to join fully in his cause. But for a third wife, Awlaki imagined, he might find a Western convert who believed in the cause of jihad and would be willing to put up with the isolation and deprivation of the new life he had chosen. Storm didn’t know how serious Awlaki was, but the cleric would return again and again to the subject.