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The Answer, Robert Mueller, Is “Yes, DOJ Does Believe It Could Kill a Citizen in the US”

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FBI Director Robert Mueller tried to avoid answering whether or not we can target US citizens in the United States.

FBI Director Robert Mueller on Wednesday said he would have to go back and check with the Department of Justice whether Attorney General Eric Holder’s “three criteria” for the targeted killing of Americans also applied to Americans inside the U.S.

Pressed by House lawmakers about a recent speech in which Holder described the legal justification for assassination, Mueller, who was attending a hearing on his agency’s budget, did not say without qualification that the three criteria could not be applied inside the U.S.

“I have to go back. Uh, I’m not certain whether that was addressed or not,” Mueller said when asked by Rep. Kevin Yoder, R-Kan., about a distinction between domestic and foreign targeting

Yoder followed up asking whether “from a historical perspective,” the federal government has “the ability to kill a U.S. citizen on United States soil or just overseas.”

“I’m going to defer that to others in the Department of Justice,” Mueller replied.

When Fox asked DOJ for clarification, a spokesperson said the framework as laid out by Holder applied abroad, and she couldn’t imagine a scenario in which it would happen domestically.

But of course, everyone is simply dodging. DOJ knows well their legal logic, such as it is, would permit the due process free killing of an American in America. After all, Eric Holder claimed in his speech that Congress had not limited the geographic scope of the government’s authority to use force.

Our legal authority is not limited to the battlefields in Afghanistan.   Indeed, neither Congress nor our federal courts has limited the geographic scope of our ability to use force to the current conflict in Afghanistan.   We are at war with a stateless enemy, prone to shifting operations from country to country.

Jeh Johnson said the same in a recent speech, specifically in the context of domestic authorities.

Third: there is nothing in the wording of the 2001 AUMF or its legislative history that restricts this statutory authority to the “hot” battlefields of Afghanistan.  Afghanistan was plainly the focus when the authorization was enacted in September 2001, but the AUMF authorized the use of necessary and appropriate force against the organizations and persons connected to the September 11th attacks – al Qaeda and the Taliban — without a geographic limitation.

And on Monday, when Holder objected to calling assassinations assassinations, he did not limit their claimed legality to overseas locales.

Here, for the reasons I have given, the U.S. government’s use of lethal force in self defense against a leader of al Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful — and therefore would not violate the Executive Order banning assassination or criminal statutes.

But long before Johnson and Harris made these arguments it became clear that the legal analysis had to permit the targeting of American citizens within the US.

That’s because the legal case cited to get from capturing a US citizen (based on the precedent of Hamdi) to killing him is Scott v. Harris, an entirely domestic case.

It also cited several other Supreme Court precedents, like a 2007 case involving a high-speed chase and a 1985 case involving the shooting of a fleeing suspect, finding that it was constitutional for the police to take actions that put a suspect in serious risk of death in order to curtail an imminent risk to innocent people.

You can’t very well argue that, having determined a US citizen to be a lawful target under the AUMF and then claimed, as they did with Awlaki, that they had no way of capturing him safely, they couldn’t assassinate him in the US, too. If a police officer can use deadly force to stop a high speed car chase, then counterterrorism officials would not hesitate to use whatever means to kill a terrorist.

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Dianne Feinstein Assures Us Her Review of Targeted Killing Is Adequate

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Senate Intelligence Committee Chair Dianne Feinstein just sent out a release assuring us all that her committee keeps close watch over counterterrorism programs, including targeted killing. In her statement, she asserted that “our counterterrorism efforts are lawful under the Constitution.”

The Attorney General presented the administration’s legal analysis for the use of force against terrorists, including Americans. I believe it is important for the public to understand the legal basis and to make clear that our counterterrorism efforts are lawful under the Constitution, U.S. law and the law of war.

We are made safer by strikes against terrorists who continue to lead and carry out attacks on the United States. There are legal limits to this authority and great care is taken to ensure it is exercised carefully and with the absolute minimum of collateral damage. The Senate Intelligence Committee is kept fully informed of counterterrorism operations and keeps close watch to make sure they are effective, responsible and in keeping with U.S. and international law. [my emphasis]

It’s all very nice for DiFi, a member of the Gang of Four, to tell us that her committee is keeping close watch on the assassination of American citizens.

She can say that, because she has actually seen the government’s legal memo authorizing the killing of Anwar al-Awlaki.

Except that as of 6:47PM on Monday, according to Ron Wyden’s Communication Director, the full Senate Intelligence Committee still had not seen the legal justification for the Awlaki killing. Nor had it answered simple questions, like how much evidence the government needs to meet the Executive Branch’s unilateral standards for due process. Or whether the government can kill you in the US.

For example, the government should explain exactly how much evidence the President needs in order to decide that a particular American is part of a terrorist group.  It is also unclear to me whether individual Americans must be given the opportunity to surrender before lethal force is used against them.  And I’m particularly concerned that the geographic boundaries of this authority have not been clearly laid out.  Based on what I’ve heard so far, I can’t tell whether or not the Justice Department’s legal arguments would allow the President to order intelligence agencies to kill an American inside the United States.

If a member of the Senate Intelligence Committee doesn’t know the answers to those questions, DiFi is simply wrong when she claims her committee has had adequate oversight over the killing of an American citizen.

It’s all very nice that DiFi tells us this is constitutional. But right now there’s still been grossly inadequate oversight to test that claim. Hamdi required an impartial adjudicator. But at this point, I’m not convinced we’ve even fulfilled the requirements of the National Security Act.

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Holder’s Unproven Claims about Anwar al-Awlaki the AQAP Leader

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Perhaps it’s because of all the dubious reasons the Administration continues to keep its case against Anwar al-Awlaki secret, but Eric Holder gave the impression of not knowing precisely what evidence the government had shown against Awlaki.

Or, deliberately misrepresenting it.

Holder mentioned Awlaki just once–purportedly to summarize Abdulmutallab’s case against Awlaki they released last month.

For example, in October, we secured a conviction against Umar Farouk Abdulmutallab for his role in the attempted bombing of an airplane traveling from Amsterdam to Detroit on Christmas Day 2009.  He was sentenced last month to life in prison without the possibility of parole.  While in custody, he provided significant intelligence during debriefing sessions with the FBI.  He described in detail how he became inspired to carry out an act of jihad, and how he traveled to Yemen and made contact with Anwar al-Aulaqi, a U.S. citizen and a leader of al Qaeda in the Arabian Peninsula.  Abdulmutallab also detailed the training he received, as well as Aulaqi’s specific instructions to wait until the airplane was over the United States before detonating his bomb. [my emphasis]

Note, this misrepresents what Abdulmutallab said, at least as shown by the summary released last month (setting aside the reasons DOJ chose not to test those claims at trial). What the summary did say was that Awlaki gave Abdulmutallab specific instructions to ignite his bomb while over the US. It did not say Awlaki was “a leader of al Qaeda in the Arabian Peninsula.” That’s DOJ’s elaboration, a frankly dishonest one, given the construction (and one that was probably at least significantly challenged by the intelligence Jubeir al-Fayfi delivered ten months after Abdulmutallab gave his testimony).

But once Holder gets to his purportedly generic case for killing US citizens, he does not use what DOJ showed Abdulmutallab to have said–that Awlaki directed his attack–but instead uses the “AQAP leader” claim he has not presented evidence for. He uses six different formulations of the claim over the course of the speech.

But it does mean that the government must take into account all relevant constitutional considerations with respect to United States citizens – even those who are leading efforts to kill innocent Americans.

Read more →

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Congress and Killing Oversight: Eric Holder v. Ron Wyden

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Eric Holder today said that giving “appropriate members of Congress” information on the “legal framework” of its operations where “lethal force is used against United States citizens” is a key part of robust oversight.

That is not to say that the Executive Branch has – or should ever have – the ability to target any such individuals without robust oversight.  Which is why, in keeping with the law and our constitutional system of checks and balances, the Executive Branch regularly informs the appropriate members of Congress about our counterterrorism activities, including the legal framework, and would of course follow the same practice where lethal force is used against United States citizens.

Well, then, there simply hasn’t been robust oversight over the Anwar al-Awlaki killing.

As of a month ago–four months after Awlaki was killed–the Senate Intelligence Committee had not been provided with the legal framework for Awlaki’s kill. This, in spite of the fact that SSCI member Ron Wyden had been requesting that framework for over five months before Awlaki was killed.

I said when Wyden made that clear that it showed there had not been adequate oversight of the killing. By his words–if not his deeds–Holder effectively made the same argument.

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Eric Holder’s View on National Security: Three Branches. Except for When the Third becomes Inconvenient.

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Eric Holder’s speech–which starts with a defense of civilian trials and ends with dead American citizens–fails to achieve its impossible task. Granted, Holder frames his defense of civilian trials in efficacy, not rule of law (in language that really should have been a cornerstone of the NDAA debate). But ultimately, Holder claims to be upholding due process, and that’s where his case for killing Anwar al-Awlaki falls apart.

Close to the beginning of his speech, Holder promises the counterterrorism powers of the government would be subject to checks and balances.

We must – and will continue to – use the intelligence-gathering capabilities that Congress has provided to collect information that can save and protect American lives.  At the same time, these tools must be subject to appropriate checks and balances – including oversight by Congress and the courts, as well as within the Executive Branch – to protect the privacy and civil rights of innocent individuals.

Holder offers the use of the FISA Court as example of all three branches exercising such checks and balances.

Let me give you an example.  Under section 702 of the Foreign Intelligence Surveillance Act, the Attorney General and the Director of National Intelligence may authorize annually, with the approval of the Foreign Intelligence Surveillance Court, collection directed at identified categories of foreign intelligence targets, without the need for a court order for each individual subject.  This ensures that the government has the flexibility and agility it needs to identify and to respond to terrorist and other foreign threats to our security.  But the government may not use this authority intentionally to target a U.S. person, here or abroad, or anyone known to be in the United States.

The law requires special procedures, reviewed and approved by the Foreign Intelligence Surveillance Court, to make sure that these restrictions are followed, and to protect the privacy of any U.S. persons whose nonpublic information may be incidentally acquired through this program.   The Department of Justice and the Office of the Director of National Intelligence conduct extensive oversight reviews of section 702 activities at least once every sixty days, and we report to Congress on implementation and compliance twice a year.  This law therefore establishes a comprehensive regime of oversight by all three branches of government.  Reauthorizing this authority before it expires at the end of this year is the top legislative priority of the Intelligence Community.

Never mind that Holder exaggerates the statutory authority given to FISC. He still uses it as a robust example of the value of three branches exercising oversight. The court–even one operating in secret, Holder claims–provides an important check and balance.

Apparently, such checks and balances are not what the Constitution has in mind when it talks about due process for American citizens.

The Supreme Court has made clear that the Due Process Clause does not impose one-size-fits-all requirements, but instead mandates procedural safeguards that depend on specific circumstances.  In cases arising under the Due Process Clause – including in a case involving a U.S. citizen captured in the conflict against al Qaeda – the Court has applied a balancing approach, weighing the private interest that will be affected against the interest the government is trying to protect, and the burdens the government would face in providing additional process.  Where national security operations are at stake, due process takes into account the realities of combat.

[snip]

Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces.  This is simply not accurate.  “Due process” and “judicial process” are not one and the same, particularly when it comes to national security.  The Constitution guarantees due process, not judicial process.

[snip]

The Constitution’s guarantee of due process is ironclad, and it is essential – but, as a recent court decision makes clear, it does not require judicial approval before the President may use force abroad against a senior operational leader of a foreign terrorist organization with which the United States is at war – even if that individual happens to be a U.S. citizen. [my emphasis]

Unfortunately (for Holder and for the rule of law), his argument falls apart here. That bolded language explicitly invokes Hamdi (though interestingly, not by name). And here’s what Hamdi has to say about what due process entails.

It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.

[snip]

We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker.

[snip]

In sum, while the full protections that accompany challenges to detentions in other settings may prove unworkable and inappropriate in the enemy-combatant setting, the threats to military operations posed by a basic system of independent review are not so weighty as to trump a citizen’s core rights to challenge meaningfully the Government’s case and to be heard by an impartial adjudicator.

[snip]

Thus, while we do not question that our due process assessment must pay keen attention to the particular burdens faced by the Executive in the context of military action, it would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his government, simply because the Executive opposes making available such a challenge. Absent suspension of the writ by Congress, a citizen detained as an enemy combatant is entitled to this process. [my emphasis]

That is, Hamdi–which Holder invokes for premise that “due process takes into account the realities of combat”–specifically says “the threats to military operations posed by a basic system of independent review are not so weighty as to trump a citizen’s core rights to challenge meaningfully the Government’s case and to be heard by an impartial adjudicator.” Hamdi permits for balancing–for the use of things like hearsay, for example. But it explicitly says that the realities of combat don’t obviate a citizen’s right to an impartial adjudicator.

You know. Like a judge.

As I’ll show in a later post, Holder’s claim that the Awlaki killing had proper Congressional oversight is just as false. But in his efforts to dismiss the necessity of courts to provide checks and balances, he invokes a SCOTUS case that requires an independent reviewer to provide just such a check.

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How Good Are DOJ’s Reasons for Burying Its Case against Anwar al-Awlaki?

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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.

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When WAS DOJ Going to Get around to Telling Us about Awlaki? Part One

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Let me start by saying that I’m all in favor of DOJ releasing the information it has on Anwar al-Awlaki. I’m not complaining that they have released it. I’m just puzzling through why they have treated it as they have thus far. In this post, I’m going to review how the government came to tell one story at Umar Farouk Abdulmutallab’s trial last year, and another one–one that implicates Awlaki–last Friday. In a follow-up post, I’m going to explore why DOJ has refused to lay out the case they have against Awlaki before (including last October).

DOJ Hid Awlaki in October

As I have noted, when DOJ made its opening argument in Umar Farouk Abdulmutallab’s trial on October 11, 2011, prosecutor Jonathan Tukel said that Abdulmutallab told the FBI on Christmas Day 2009 that a guy named Abu Tarak had ordered him to attack the US.

And Abu-Tarak gave him the direction.

Remember, I said there were only three parts to the plan, he had to blow up a plane, it had to be a U.S. airliner and it had to take place over U.S. soil. Abu-Tarak reported that way, make sure it’s a U.S. aircraft, make sure it takes place over the United States.

And then the defendant told the FBI that on approximately December 6 or 7 he received the bomb from Abu-Tarak in Yemen. [my emphasis]

In the narrative they released last Friday, they said Awlaki gave that order.

Although Awlaki gave defendant operational flexibility, Awlaki instructed defendant that the only requirements were that the attack be on a U.S. airliner, and that the attack take place over U.S. soil. [my emphasis]

Now, the explanation I’ve gotten is that Abu Tarak is Awlaki, or rather, that Abu Tarak is an alias for Awlaki.

But assuming that explanation is correct (I’m not entirely convinced), it still permits several possibilities:

  • Abdulmutallab just made the name up in an effort to hide Awlaki–and, as we’ll see below–bomb-maker Ibrahim al Asiri’s role (but the FBI described Abdulmutallab as bragging about his ties to Awlaki and al Qaeda in his first interrogation)
  • The government already knew Abu Tarak was an alias Awlaki used (which doesn’t seem to be the case, since early reporting says Awlaki blessed the op, but didn’t say he was the cleric who ordered it)
  • Abdulmutallab later told the FBI that Abu Tarak was Awlaki’s alias
  • Abdulmutallab never confirmed Abu Tarak was an alias for Awlaki, but in later interrogations said that Awlaki had given the order to strike the US and therefore the government concluded that Abu Tarak must be an alias

(Here are two more of the most comprehensive stories based significantly on Abdulmutallab’s initial confession to give more of a sense of what they knew from Abdulmutallab’s first confession, on which Tukel’s opening was based.)

Dr. Simon Perry’s statement seems to rule out some of those possibilities, given that, even after reading redacted versions of 18 or 19 of Abdulmutallab’s interrogation reports, Perry treats Abu Tarak and Awlaki as different people: he describes Abu Tarak as someone besides Awlaki who significantly influenced Abdulmutallab.

Aulaqi was not the only influential fundamentalist in UFAM’s life. While residing at Abu Tarak’s residence in Sana, Yemen he was mainly confined to his residence and discouraged from any communication with the outside world (phone, email). During this period, UFAM spoke regularly with Abu Tarak and three other individuals who visited him daily, speaking with them about Jihad and martyrdom. [my emphasis]

Given Perry’s apparent understanding that Abu Tarak and Awlaki are different people, either Abdulmutallab never clearly said that Abu Tarak and Awlaki were the same person, any statement he made to that effect was redacted in the copies Perry read, or Perry wasn’t given the interrogation where Abdulmutallab made such a statement.(Note, however, that the only reference Perry makes to Abu Tarak cites the Christmas Day confession, so it’s possible Abdulmutallab never mentioned him again.)

With all that in mind, let’s review how Tukel told the story about Abu Tarak at the trial but is now telling a story about Awlaki at sentencing.

DOJ committed in August not to use information from “plea bargains”

Back in August, Abdulmutallab tried to mount a defense by making all of his confessions, one way or another, inadmissible. He wanted his initial confession thrown out because he had not received a Miranda warning, he wanted statements he made at UM Hospital thrown out because he was drugged up, and he wanted the statements he made while at Milan (pronounced My-Lan) Prison–all of them–excluded because they were made as part of a plea negotiation.

Defendant ABDULMUTALLAB met with government agents on numerous occasions at the Milan Correctional Facility. The government intended to obtain incriminating statements from Defendant regarding the alleged incident on December 25, 2009. In addition, the government engaged in plea negotiations with the Defendant during the meetings.
Before the meetings began, the government agents verbally agreed that they would not use any statements Defendant made, against him. Defendant relied on the government’s representation – as officers of the court – and made incriminating statements. See United States v. Dudden, 65 F.3d 1461, 1467 (9th Cir. 1995) (the government can grant the defendant varying degrees of immunity in an informal agreement). Allowing the government to use these statements at trial will violate the government’s agreement with Defendant.

In response to this motion, the government said it would not use any of these statements “at trial,” so the judge should deny his motion as moot, which she did.

Defendant also filed a separate motion to suppress statements made to agents on other dates. R.59: Motion to Suppress Statements Made to Government Agents at the Milan Correctional Facility. The government will not seek to offer those statements at trial either, and therefore that motion should be denied as moot.

So basically, the government committed, on August 26, 2011, not to use anything Abdulmutallab said while at Milan during “the trial.” Read more →

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The UndieBomber’s Interrogators Asked Him about Anwar al-Awlaki’s Death Just after He Was Put on Kill List

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At least by October 4, 2011, UndieBomber Umar Farouk Abdulmutallab had been told that Anwar al-Awlaki had been killed. During jury selection that day, he yelled out “Anwar is alive,” as he had previously yelled out “Osama’s alive” at a hearing in September.

A week later, Abdulmutallab tried to plead guilty, and the following day, on October 12, he somewhat surprisingly did so (though of course he had tried to plead guilty a year earlier when he fired his court appointed lawyers, so maybe it shouldn’t have been such a surprise after all).

I find it interesting that Abdulmutallab knew Awlaki was dead when he plead guilty because Abdulmutallab’s interrogators appear to have tried to goad him into revealing more by discussing the death of Awlaki … before it happened.

In his memo on why Abdulmutallab represents an ongoing danger, Dr. Simon Perry lists the Abdulmutallab interrogations he relied on. The dates track what we know about Abdulmutallab’s interrogation: he confessed on Christmas Day 2009 (apparently implicating an Abu Tarak, which may be an alias for Anwar al-Awlaki). Then he clammed up for several weeks, until the FBI got Abdulmutallab’s family members to fly to MI to convince him to cooperate, which he started doing on January 29, 2010. Perry describes interrogations happening almost every day for 11 days (taking a break on Monday, February 1 and the following weekend, February 6 and 7), followed by seven more interrogations in February. Perry’s list suggests there was a break until April–though he does cite a March 15 interrogation (see footnote 54) that doesn’t appear in his list. In April, there were three interrogations: on April 8, 16, and 30. Altogether, Perry says he referred to reports from 18 or 19 interrogations, depending on whether there was one on March 15.

Perry’s memo therefore provides a really general overview of the interrogations Abdulmutallab had (though we can’t be entirely sure that these include all his interrogations). We can’t really draw conclusions about what the government learned from him when, since Perry’s focus is limited to Abdulmutallab’s radicalization and desire for martyrdom rather than specific information about Awlaki. And, as I noted here, Perry rather bizarrely doesn’t date the interrogation when Abdulmutallab admitted that Awlaki was the person originally named as Abu Tarak who ordered him to attack the US, so we can’t learn from Perry’s memo when Abdulmutallab clearly implicated Awlaki as Awlaki in the plot.

But there are two fascinating details of Abdulmutallab’s interrogation revealed by the following passage of Perry’s memo (remember, Perry uses the acronym UFAM for Abdulmutallab).

Yet we can learn that the rewards of martyrdom play a significant part for UFAM since when he talks about Aulaqi’s martyrdom he stresses that he believes that if Aulaqi were to be killed, he would be entitled to a martyrs reward. UFAM explains (again not in the context of his own martyrdom) that there are different degrees of reward for martyrdom. [interrogation from April 16, 2010] For example UFAM believes that if the accusations against Aulaqi were true (allegations of solicitation of prostitution) Aulaqi could repent for these sins and his commitment to Jihad would outweigh such transgressions. He adds that people are not perfect and that they make mistakes. [interrogations from February 15, 19, 2010]

I’ll start with the second detail first. On February 15 and 19, 2010–Abdulmutallab’s 12th and 14th interrogations of 18 or 19 Perry reviewed, so fairly late in the interrogation process–his interrogators were challenging Awlaki’s sanctity based on his prior busts for soliciting prostitutes. Interrogators presumably told Abdulmutallab about the two times Awlaki had been busted in the 1990s while living in San Diego.

The probe of the 9/11 attacks soon led Washington FBI agents back to San Diego, where they found that al-Awlaki had twice been busted for soliciting prostitutes in 1996 and 1997 but had avoided jail time. Al-Awlaki has previously described these charges as “bogus.” But FBI agents hoped al-Awlaki might cooperate with the 9/11 probe if they could nab him on similar charges in Virginia. FBI sources say agents observed the imam allegedly taking Washington-area prostitutes into Virginia and contemplated using a federal statute usually reserved for nabbing pimps who transport prostitutes across state lines.

And it would make sense that interrogators would raise Awlaki’s past with prostitutes. It appears that Abdulmutallab’s interrogators were trying to get him to reveal more information–lose faith in Al Qaeda so he would reveal more–based on what a hypocrite his religious mentor was.

Not that it appears to have worked. Abdulmutallab just forgave Awlaki in the same way many religious conservatives dismiss their own leaders’ hypocrisy in this country.

The other reference is even more interesting. On April 16, 2010, the second-to-last interrogation of those Perry reviewed, Abdulmutallab’s interrogators asked him about Awlaki’s martyrdom. Or, to use the secular term, they talked about Awlaki’s death. Read more →

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Why Has the Government Story about Who Ordered the UndieBomber to Attack the US Changed?

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The government has told two or three slightly different stories about who directed and inspired Umar Farouk Abdulmutallab’s UndieBomber plot. The stories are all reconcilable (I’m not suggesting nefarious intent). But the differences in the three stories are worth noting, not least because the government killed Anwar al-Awlaki based on a claim he was the director of external operations of Al Qaeda in the Arabian Peninsula, reportedly based in significant part on a claim that he directed Abdulmutallab’s plot.

In October, prosecutor Jonathan Tukel said that an Al Qaeda member with whom Abdulmutallab stayed in Sana, Yemen named Abu Tarak ordered the UndieBomber to attack a US airline over US airspace. Today, they say Awlaki gave that order. [See update below for what I think is an explanation.]

Update: There’s a totally different explanation. Abu Tarak is an alias for Awlaki. Thus, while Abdulmutallab seemed to be hiding Awlaki’s identity in that first interrogation, that initial story is consistent with his later story (which is presumably why the government was happy just using the initial interrogation).

Al-Awlaki had significant influence–but so did Abu-Tarak and others

The most balanced of the three stories submitted by the government came in a memo, released today, from an expert on martyrdom, Dr. Simon Perry, basically laying out why Abdulmutallab, who hoped for martyrdom, is so dangerous (I’ll leave to others to assess the validity of Perry’s science; it’s not relevant to this post).

In a section describing who inspired Abdulmutallab to extremism, Perry makes the central inspirational importance of Anwar al-Awlaki to Abdulmutallab clear–going back to 2005–but describes the following as other influences:

  • Fundamentalist Islamists
  • Abu Tarak and three other visitors who visited daily while Abdulmutallab stayed with Abu Tarak in Sana leading up to his attack
  • Uthmann (?)
  • A Jihadist who preached in England
  • Other fighters in Yemen
  • A man from Al Qaeda he met in Yemen

Here’s the passage. (Note, Perry uses the acronym UFAM for Abdulmutallab; I’ve taken out the footnotes here for ease of reading, but they’re all to interrogations between Christmas 2009 to February 5, 2010.)

Manipulated by fundamentalists, such as Aulaqi and his internet lectures, UFAM claims that the main motivation for conducting the martyrdom mission included his interpretation of Koranic verses and his regularly attendance at prayers, where he met and interacted with Fundamentalist Islamists. UFAM was familiar with all of Aulaqi’s lectures, and they were an important motivator which led UFAM to decide to participate in Jihad. He began listening to the lectures in 2005 and reading Aulaqi’s writings, which motivated him to accept martyrdom as a possibility. Aulaqi was not the only influential fundamentalist in UFAM’s life. While residing at Abu Tarak’s residence in Sana, Yemen he was mainly confined to his residence and discouraged from any communication with the outside world (phone, email). During this period, UFAM spoke regularly with Abu Tarak and three other individuals who visited him daily, speaking with them about Jihad and martyrdom. UFAM discussed the concept of Jihad also with Uthmann who supported Mujahidin worldwide already from 2005. He was deeply influenced by a Jihadist who preached in England and elsewhere and used to meet with him intensively (as often as 3 times a week). UFAM associated with Aulaqi who frequently spoke of Jihad and interacted with other fighters, and while in Yemen, he met with a man from Al Qaeda who further deepened his conviction. [my emphasis]

Now, it’s not Perry’s job to describe the operation itself, so I’ll take nothing from his silence on who directed it. He makes it very clear Awlaki counselled Abdulmutallab on the appropriateness of martyrdom.

And Perry does say that Awlaki told Abdulmutallab he should prepare a martyrdom video in anticipation of a plane operation; Abdulmutallab made the video on December 2 or 3 (this passage is sourced to Interrogations on January 29 and February 9, 2010).

UFAM himself participated in this practice of preparing a martyrs’ video after he was told by Aulaqi that he would bring down a plane and that he should prepare a video. UFAM spent time thinking about his martyr’s video. Approximately on the 2nd or 3rd of Dec. 2009, UFAM made a martyr’s video with the help of two video technicians who brought the equipment. They brought a black flag with Islamic writing for the background as well as clothing and other props. It took them approximately 2 or 3 days to complete the video.

And the target was chosen, according to Perry, by Awlaki. But oddly, he did not source that assertion to any of Abdulmutallab’s interrogations.

He was prepared to fulfill his mission of Jihad against whatever enemy was identified by Aulaqi. UFAM did not choose the target or the mission, it was chosen for him. [Perry did not source this statement. Instead, in a footnote he points out his unsourced statement contradicted a comment Abdulmutallab made at his sentencing, in which the defendant said he was motivated by hate for the US.]

Awlaki chose the target

In the narrative released today (based, according to the government filing, on conversations of unknown date during which Abdulmutallab’s original court-appointed lawyers were trying to negotiate a plea bargain that never happened), Awlaki instructed Abdulmutallab to make a martyrdom video.

Awlaki told defendant that he would create a martyrdom video that would be used after the defendant’s attack. Awlaki arranged for a professional film crew to film the video. Awlaki assisted defendant in writing his martyrdom statement, and it was filmed over a period of two to three days.

Thus far, the government’s narrative matches Perry’s. But the government narrative provides more details about how Awlaki gave Abdulmutallab the final instructions about how to carry out the attack.

Although Awlaki gave defendant operational flexibility, Awlaki instructed defendant that the only requirements were that the attack be on a U.S. airliner, and that the attack take place over U.S. soil. Beyond that, Awlaki gave defendant discretion to choose the flight and date. Awlaki instructed defendant not to fly directly from Yemen to Europe, as that could attract suspicion. [my emphasis]

Abu Tarak chose the target

That’s funny, because back when prosecutors gave their opening argument on October 11, just 12 days after the government killed Awlaki in a drone strike, they told a different story. In that version, Awlaki provided the inspiration for Abdulmutallab.

So [Abdulmutallab] had the opportunity to do anything he wanted with his life. But instead he began listening to tapes of someone named Anwar al-Awlaki, a radical preacher, and he became committed to jihad, and he left graduate school and he went to Yemen. He wanted jihad and he sought it out and he found it.

That’s it–the sole mention of Awlaki in the case the government was willing to defend in court.

But a guy named Abu Tarak–the guy, according to Perry, with whom Abdulmutallab stayed in Sana, Yemen–gave Abdulmutallab the instructions.

So what else did the defendant say to the FBI? He said that he sought out and found al-Qaeda. He said that he was introduced at a mosque to someone he called Abu-Tarak, an al-Qaeda member. He told the FBI that he and Abu-Tarak spoke daily about jihad and martyrdom and supported al-Qaeda and Osama bin Laden. And martyrdom is, of course, a suicide operation where the person is engaged in jihad, and they carry out an operation, sometimes called suicide bombing, sometimes called martyrdom bombing, where the person intends to kill and to himself die in the act of doing it, and they usually think that they will end up in heaven as a result of doing that.

And the defendant said that he and Abu-Tarak spoke daily about ways to attack the United States. Daily.

And then in late November of 2009, remember, this interview is taking place on December 25th so he’s talking about a month or so earlier, Abu-Tarak suggested to the defendant that he become involved in a plane attack against the United States aircraft. And the defendant agreed to do that. And the plan was that the bomb would be concealed in the defendant’s underwear, and Abu-Tarak gave him training in detonating the bomb. And the way the bomb would work is that the defendant would inject liquid into a powder with a syringe and that would cause the explosion.

And Abu-Tarak told the defendant that the bomb would not be detected by airport security anywhere in the world. And he said that the bomb maker was a Saudi Arabian individual, and in fact, the defendant told the FBI that he met the bomb maker, he met the Saudi Arabian bomb maker while he was in Yemen. And Abu-Tarak told him that the plane would crash and it would kill everybody on board.

And Abu-Tarak gave him the direction.

Remember, I said there were only three parts to the plan, he had to blow up a plane, it had to be a U.S. airliner and it had to take place over U.S. soil. Abu-Tarak reported that way, make sure it’s a U.S. aircraft, make sure it takes place over the United States.

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Government Finally Releases Narrative of Anwar al-Awlaki’s Role in UndieBombing Plot

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As part of its sentencing memo asking for multiple counts of life imprisonment against Umar Farouk Abdulmutallab, the government has finally officially laid out how it claims Anwar al-Awlaki was involved in Abdulmutallab’s plot. I’ve included the entirety of the account below the rule.

I agree with Evan Perez. Now that they’ve made this narrative available, surely they can make the OLC memo authorizing Awlaki’s death available (note, the narrative says only that Awlaki and Samir Khan died, not that we killed them).

One more thing I’m interested in. I assume that Abdulmutallab, in this response to this filing, will object if he finds any of this inaccurate (so I assume it is accurate). He appears to have objected to this narrative in the presentencing report (and therefore, here), but he doesn’t say they were inaccurate.

Defendant states that the objected-to paragraphs contain “information obtained during plea negotiations in this matter and can not at this stage be used against him, for sentencing purposes.”

But given certain vague aspects of the narrative, I’m wondering how much corroborating evidence they have (particularly since several of the people mentioned in it are dead–and even Ibrahim al-Asiri, the bombmaker, was rumored to be). For example, the initial communication with Awlaki would involve data evidence. Did they get that after the fact? Or were they tracing it in real time and missed that too? Some of it might depend on other witnesses who have since returned to Saudi Arabia. And I wonder if the government has tracked down (for example) the unnamed middle man who put Abdulmutallab in touch with Awlaki? We know they have physical proof of Asiri’s involvement. What other evidence is out there?

Anyway, it’s high time the government release this information officially. And now that it’s released, they should do more and release the OLC memo.

In August 2009, defendant left Dubai, where he had been taking graduate classes, and traveled to Yemen. For several years, defendant had been following the online teachings of Anwar Awlaki, and he went to Yemen to try to meet him in order to discuss the possibility of becoming involved in jihad. Defendant by that time had become committed in his own mind to carrying out an act of jihad, and was contemplating “martyrdom;” i.e., a suicide operation in which he and others would be killed.

Once in Yemen, defendant visited mosques and asked people he met if they knew how he could meet Awlaki. Eventually, defendant made contact with an individual who in turn made Awlaki aware of defendant’s desire to meet him. Read more →

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