by Scott Shane
“the one thing we didn’t anticipate was having to apologize for having won the Nobel Peace Prize” David Remnick, The Bridge: The Life and Rise of Barack Obama (New York: Alfred A. Knopf, 2010), 583.
Obama asked his speechwriters to dig up readings from Thomas Aquinas White House official, confidential interview, 2012.
“I cannot be guided by their examples alone” Barack Obama, “Nobel Lecture: A Just and Lasting Peace,” December 10, 2009, http://www.nobelprize.org/nobel_prizes/peace/laureates/2009/obama-lecture_en.html.
John Owen Brennan, whose Jesuit education at Fordham University See Karen DeYoung, “CIA Veteran John Brennan Has Transformed U.S. Counterterrorism Policy,” Washington Post, October 24, 2012, http://www.washingtonpost.com/world/national-security/cia-veteran-john-brennan-has-transformed-us-counterterrorism-policy/2012/10/24/318b8eec-1c7c-11e2-ad90-ba5920e56eb3_story.html. There is also a useful compilation of material on Brennan and a sample of his speeches at The New York Times Topics page: http://topics.nytimes.com/top/reference/timestopics/people/b/john_o_brennan/index.html. My description of Obama’s view of Brennan is based on multiple confidential interviews with administration officials, mostly in 2012.
Brennan won over many of his critics in the human rights world For example, when I called Elisa Massimino, president of Human Rights First, for a story about Brennan’s nomination to become CIA director, she offered praise: “During his four years at the White House, he’s been clear in backing up the president’s insistence that we can’t trade our values for security,” she said, a remarkable tribute for a man associated closely with the drone campaign.
People like Harold Koh, the State Department’s legal adviser Koh told me and Jo Becker in 2012, “If John Brennan is the last guy in the room with the president, I’m comfortable, because Brennan is a person of genuine moral rectitude. It’s as though you had a priest with extremely strong moral values who was suddenly charged with leading a war.” Becker and Shane, “Secret ‘Kill List.’ ”
Another notable dissenter was Dennis Blair Two former intelligence officials, confidential interviews, 2012.
a swelling tally of foreign militants who had been “removed from the battlefield” See, for instance, Bill Roggio, “Senior al Qaeda and Taliban Leaders Killed in US Airstrikes in Pakistan, 2004–,” Long War Journal, continuously updated page, http://www.longwarjournal.org/pakistan-strikes-hvts.php, accessed 2014.
an interview to a sympathetic Yemeni journalist, Abdulelah Haider Shaye SITE Intelligence Group translation dated February 3, 2010, of interview posted on Al Jazeera’s Arabic website on February 2, 2010.
Shaye would later be imprisoned in Yemen for three years with the encouragement of the Obama administration Shaye’s story is complex; he did some excellent journalistic work, but Yemeni and American officials claimed to have evidence that he had actively collaborated with AQAP. Some human rights activists considered Shaye’s conviction in Yemen on terrorism-related charges in 2010 to be payback for his reporting on the Al Majala strike for Al Jazeera, though he was not the first to report the US role or the deaths of women and children there. On February 2, 2011, when a pardon for Shaye was under consideration, Obama spoke with Saleh to express his concern and the pardon was canceled. Shaye was released in July 2013 after serving three years of his five-year term. Six months later, Shaye damaged his reputation with supporters by praising an Al Qaeda attack on a Yemeni Defense Ministry hospital that killed at least fifty-six people, including doctors and nurses. For a sympathetic account of Shaye, see Jeremy Scahill, “Why Is President Obama Keeping a Journalist in Prison in Yemen?” Nation, March 13, 2012, http://www.thenation.com/article/166757/why-president-obama-keeping-journalist-prison-yemen.
Some civil libertarians argued that See, for instance, several columns for Salon by Glenn Greenwald, including “Criminalizing Free Speech,” Salon, June 1, 2011, where Greenwald takes a different view of the Brandenburg case that I discuss below.
The Supreme Court’s ruling in Brandenburg v. Ohio 395 U.S. 444, Brandenburg v. Ohio (No. 492), argued February 27, 1969, decided June 9, 1969, Cornell University Law School, Legal Information Institute, http://www.law.cornell.edu/supremecourt/text/395/444#ZO-395_US_444n2ref.
Awlaki began exchanging encrypted e-mails with a Bangladeshi man, Rajib Karim I retrieved the original excerpts of the e-mails released by Scotland Yard, but they were subsequently removed from the web. Excerpts with some minor changes in spelling were published on February 28, 2011, by the regional British newspaper the Northern Echo: “Excerpts from Rajib Karim Terror Plot Messages,” February 28, 2011, http://www.thenorthernecho.co.uk/news/8880903.Excerpts_from_Rajib_Karim_terror_plot_messages/.
intercepts of Awlaki’s private messages starting in early 2009 Former American intelligence analyst, confidential interview, 2014. A background information sheet on Awlaki given to some reporters when he was killed, and shared with the author, said that Awlaki “has sought to use WMD, specifically poisons including cyanide and ricin to attack Westerners.”
complete a legal opinion on the legal and constitutional status of a presidential authorization to kill Awlaki This account of Barron and Lederman’s work is based on confidential interviews with several government lawyers and counterterrorism officials who participated in discussions of the Awlaki opinion, 2014.
“When I saw that he had clearly given an order” Harold Koh, telephone interview, March 7, 2014.
On the morning of Friday, February 5, the president and his security cabinet met at the White House Leon Panetta with Jim Newton, Worthy Fights: A Memoir of Leadership in War and Peace (New York: Penguin, 2014), 266–67.
“If this had happened a year earlier in the administration” Michael Leiter, interview, February 12, 2014.
Obama praised the work of the CIA officers “President Obama and CIA Director Panetta Speak at CIA Memorial Service,” White House, Briefing Room, February 5, 2010, http://www.whitehouse.gov/the-press-office/president-obama-and-cia-director-panetta-speak-cia-memorial-service.
Awlaki was assigned a code name picked from a map of Ohio Two counterterrorism officials described the naming process for the “objectives” on the military kill list in confidential interviews, 2014.
notable for a collection of houses made from welded steel See the National Register of Historic Places nomination form for the Hobart Welded Steel Houses, http://pdfhost.focus.nps.gov/docs/NRHP/Text/64000629.pdf.
Barron and Lederman’s legal reasoning, which they laid out in writing in a memo dated February 19 I had first requested all Office of Legal Counsel opinions on targeted killing under the Freedom of Information Act in June of 2010. After a four-year legal battle by The New York Times and the American Civil Liberties Union, the Justice Department lost on appeal and released a heavily redacted copy of the February 19, 2010, legal opinion. The redacted memo can be viewed at Charlie Savage, “First Justice Department Memo on Killing Anwar Al-Awlaki,” August 15, 2014, http://www.nytimes.com/interactive/2014/08/16/us/16firstolcawlakimemo.html.
in a speech explaining the Justice Department’s view, Attorney General Holder would say that adequate “due process” The text of Holder’s speech at Northwestern University School of Law on March 5, 2012, can be found here: “Attorney General Eric Holder Speaks at Northwestern University School of Law, March 5, 2012,” US Department of Justice, Briefing Room, http://www.justice.gov/opa/speech/attorney-general-eric-holder-speaks-northwestern-university-school-law.
Kevin Jon Heller, an American law professor teaching in London and Melbourne Kevin Jon Heller, “Let’s Call Killing al-Awlaki What It Is—Murder,”
Opinio Juris (blog), April 8, 2010, http://opiniojuris.org/2010/04/08/lets-call-killing-al-awlaki-what-it-is-murder/.
they set out to write a second opinion, completed on July 16 The second Barron-Lederman memo, dated July 16, 2010, was released in redacted form in 2014 after a federal appeals court ruled in favor of The New York Times and the American Civil Liberties Union. The ruling, including the text of the second Awlaki opinion, is usefully annotated by Charlie Savage at “Justice Department Memo Approving Targeted Killing of Anwar Al-Awlaki,” The New York Times, June 23, 2014, http://www.nytimes.com/interactive/2014/06/23/us/23awlaki-memo.html.
“In reaching this conclusion,” Barron and Lederman wrote in the forty-one-page July memo Savage, “First Justice Department Memo,” 19.
“This,” Obama told aides of the decision to target Awlaki Two former government officials, confidential interviews, 2012.
an informal online survey of his colleagues Professor Mark Kende posted the question on a closed Internet mailing list for professors of constitutional law, conlawprof (http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof). He kindly compiled the results and shared them with me.
“I taught constitutional law for ten years” CQ Transcriptions, “Senator Barack Obama Delivers Remarks at a Campaign Event,” Lancaster, Pennsylvania, March 31, 2008, retrieved via Nexis.com.
“My view was Anwar al-Awlaki was actively plotting to kill American citizens” Ambassador Gerald Feierstein, interview, October 21, 2013.
called “dirty hands” Stephen de Wijze, “Targeted Killing: A ‘Dirty Hands’ Analysis,” Contemporary Politics 15, no. 3 (2009). The original essay examining this concept and borrowing the name from Sartre was Michael Walzer, “Political Action: The Problem of Dirty Hands,” Philosophy and Public Affairs 2, no. 2 (1973): 160–80, https://www.sss.ias.edu/files/pdfs/Walzer/Political-action.pdf.
“the least evil choice available in the circumstances” Ben Jones and John M. Parrish, “Drones and Dirty Hands,” paper presented at the annual meeting of the Western Political Science Association, April 2014, Seattle, WA, http://wpsa.research.pdx.edu/papers/docs/ben%20jones.pdf, which takes issue with the characterization of targeted killing as a “dirty hands” dilemma.
who had vowed on taking office to run the most transparent administration in history Obama had promised on his first full day in office that “my Administration is committed to creating an unprecedented level of openness in Government.” See “Transparency and Open Government,” Memorandum for the Heads of Executive Departments and Agencies, January 21, 2009, http://www.whitehouse.gov/the_press_office/TransparencyandOpenGovernment. By 2014, most references to the policy found via Google were sarcastic.
There would be three more American strikes in Yemen See Scott Shane, Mark Mazzetti, and Robert F. Worth, “Secret Assault on Terrorism Widens on Two Continents,” The New York Times, August 14, 2010, http://www.nytimes.com/2010/08/15/world/15shadowwar.html.
American intelligence picked up a walkie-talkie signal believed to be associated with Awlaki Two former counterterrorism officials, confidential interviews, 2014. Other examples of the hazard of relying on the signatures of cell phones and other electronic devices for targeting strikes are discussed in Jeremy Scahill and Glenn Greenwald, “The NSA’s Secret Role in the U.S. Assassination Program,” Intercept, February 10, 2014, https://firstlook.org/theintercept/2014/02/10/the-nsas-secret-role/.
He complained sharply to the man some described as the president’s favorite general, General James “Hoss” Cartwright Senior Obama administration official, confidential interview, 2014.
“His father made several attempts to persuade him to stop talking about jihad” Morten Storm, telephone interview, August 31, 2014.
on July 16 the Treasury Department formally labeled Anwar al-Awlaki as a “Specially Designated Global Terrorist” Treasury Department, “Treasury Designates Anwar Al-Aulaqi, Key Leader of Al-Qa’ida in the Arabian Peninsula,” press release, July 16, 2010, www.treasury.gov/press-center/press-releases/Pages/tg779.aspx.
The ACLU lawyers believed See Case 1:10-cv-01303-JDB, AMERICAN CIVIL LIBERTIES UNION et al. v. GEITHNER et al., US District Court for the District of Columbia.
Nasser al-Awlaki filed suit Case 1:10-cv-01469-JDB, AL-AULAQI v. OBAMA et al., US District Court for the District of Columbia. All documents, including a full transcript of the November 8, 2010, hearing before Judge Bates, are available on the Pacer electronic records system.
A Canadian from a Muslim immigrant family For more on Jameel Jaffer, see Michelle Shephard, “How a Lawyer from Canada Became a Leading Critic of U.S. National Security Policies,” Toronto Star, January 15, 2013, http://www.thestar.com/news/world/2013/01/15/how_a_lawyer_from_canada_became_a_leading_critic_of_us_national_security_policies.html.
The New York Times management decided in 2007 Michael Calderone, “Times Withdraws from Chummy Galas, Leaving Rove Dateless,” New York Observer, May 2, 2007, http://observer.com/2007/05/itimesi-withdraws-from-chummy-galas-leaving-rove-dateless/.
“Sasha and Malia are huge fans” Remarks by the President at the White House Correspondents Association Dinner, video, May 1, 2011, White House, http://www.whitehouse.gov/photos-and-video/video/president-obama-and-jay-leno-white-house-correspondents-dinner#transcript.
the CIA had carried out more than eighty drone strikes in Pakistan Several organizations compiled data on press reports of strikes in Pakistan, and though counts of civilian casualties varied, they were invariably higher than those American officials offered on background. Among the counts were those by the Bureau of Investigative Journalism in London, “Get the Data: Drone Wars,” http://www.thebureauinvestigates.com/category/projects/drones/drones-graphs/; the New American Foundation, “Drone Wars, Pakistan: Analysis,” http://securitydata.newamerica.net/drones/pakistan/analysis; and Long War Journal, “Charting the Data for US Airstrikes in Pakistan, 2004–,” http://www.longwarjournal.org/pakistan-strikes.php.
Faisal Shahzad Scott Shane and Mark Mazzetti, “Times Sq. Bomb Suspect Is Linked to Militant Cleric,” The New York Times, May 6, 2010, http://www.nytimes.com/2010/05/07/world/middleeast/07awlaki-.html; also see Richard Esposito, Chris Vlasto, and Chris Cuomo, “Sources: Shahzad Had Contact with Awlaki, Taliban Chief, and Mumbai Massacre Mastermind,” ABC News, May 6, 2010, and Alexander Melagrou-Hitchens, “Anwar al-Awlaqi’s Disciples: Three Case Studies,” Combating Terrorism Center at West Point, post, July 1, 2011, https://www.ctc.usma.edu/posts/anwar-al-awlaqi’s-disciples-three-case-studies.
which he had believed would kill at least forty people “Government’s Memorandum in Connection with the Sentencing of Faisal Shahzad,” filed September 29, 2010, in US v. Faisal Shahzad, Case 1:10-cr-00541 in the US District Court for the Southern District of New York.
“When I watched Anwar Awlaki on video, I thought he was talking to me” John Miller, “Inside the Plans of Capitol Bomb Suspect,” CBS News, February 18, 2012, http://www.cbsnews.com/news/inside-the-plans-of-capitol-bomb-suspect/. Miller, a former FBI official, worked in the office of the Director of National Intelligence at the time of the Times Square bombing attempt.
11. THE GUY EVERYONE WANTED TO FIND
“He’d go five times a day to the mosque” Saleh bin Fareed, interview, January 28, 2014, Aden.
On March 1, 2009, in a telephone address to an Islamic gathering in Pakistan The audio of Awlaki’s talk to the Pakistanis, often under the title “State of the Ummah,” is available on YouTube, for instance at http
s://www.youtube.com/watch?v=itXhos7yEhc.
the initial contacts may have dated back as far as 2006 Morten Storm, Agent Storm: My Life Inside Al Qaeda and the CIA (New York: Atlantic Monthly Press, 2014), 102–3.
“He came from a rich family,” Storm said Morten Storm, telephone interview, August 31, 2014.
He had even installed a television in his apartment in Al Ataq This and some other details on Awlaki’s relationship with his first two wives are from Storm, Agent Storm, 148–51, and Morten Storm, telephone interview, August 31, 2014.
“He sent me a message—he said, ‘Father, consider my family is your immediate family’ ” Nasser al-Awlaki, video interview by Medea Benjamin, June 2013, Sanaa.
Anwar “really wanted his family to live under normal conditions” Nasser al-Awlaki, written answers to questions sent by the author, January 2014.
he mentioned to Morten Storm the possibility of helping him find yet another wife Storm, Agent Storm, 151.
By August 1, 2009, Awlaki was publicly taking the side of AQAP Awlaki’s blog entry “The Army of Yemen Confronts the Mujahideen,” http://www.anwar-alawlaki.com, August 1, 2009, archived at Cryptome.org: http://cryptome.org/anwar-alawlaki/09-0801.htm.
he had approved the eager appeal of Umar Farouk Abdulmutallab to join the jihad “USA v. Umar Farouk Abdulmutallab, Case: 2-10 cr. 20005 in the Eastern District of Michigan, Government’s Sentencing Memorandum,” February 10, 2012, posted at http://www.washingtonpost.com/wp-srv/world/documents/umar-farouk-abdul-mutallab-sentence-brief.pdf, 13. Some commentators have understandably been confused by the seeming overlap between Awlaki and the person Abdulmutallab described as “Abu Tarak” in his initial FBI interview. According to an American official familiar with the thinking of FBI agents and prosecutors, Abdulmutallab later acknowledged that “Abu Tarak” did not exist but was a sort of composite of Awlaki and others who had helped him. An AQAP video released in late 2014 suggested that Qaid al-Dhahab, an Al Qaeda operative whose sister was Awlaki’s second wife, had met Abdulmutallab in Sanaa and may have connected him with Awlaki. (See: Site Intelligence Group, “AQAP Releases First Part in Video Documentary on Dhahab Brothers,” December 26, 2014, https://news.siteintelgroup.com/Jihadist-News/aqap-releases-first-part-in-video-documentary-on-dhahab-brothers.html. This video includes previously unreleased footage of Awlaki with Abdulmutallab and Nasser al-Wuhayshi, the leader of AQAP, underscoring Awlaki’s role in both the airliner plot and the Al Qaeda branch.) The point is that “Abu Tarak” was not a pseudonym for Awlaki and that not everything Abdulmutallab said about the made-up character was true of Awlaki. For instance, Abdulmutallab said “Abu Tarak” lived in Sanaa in 2009, while Awlaki lived in Shabwah. Because of an agreement with the defense that prosecutors would not use Abdulmutallab’s later FBI interviews in his trial, the lead prosecutor, Jonathan Tukel, used only the statements about “Abu Tarak” in his opening statement at trial. Later, after Abdulmutallab pleaded guilty, the judge permitted prosecutors to use Abdulmutallab’s later statements about Awlaki in their sentencing memorandum (Justice Department official, confidential telephone interview, 2014).