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Lawmakers’ questions about the U.S. drone policy held up the nomination of now-CIA Director John Brennan.

MANUEL BALCE CENETA • Associated Press ,

Faisal Shahzad reached out to Anwar al-Awlaki before his failed bombing attempt in New York City’s Times Square in 2010.

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Umar Farouk Abdulmutallab, the underwear bomber, offered evidence that Al-Awlaki was “operational,” not just an inciter.

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By the time the missile found him, Anwar al-Awlaki, 40, had been under U.S. scrutiny for more than a decade.

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The tie between Nidal Malik Hasan, charged in the 2009 Fort Hood shooting, and Al-Awlaki raised the leader’s global profile.

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How a U.S. citizen came to be in drone crosshairs

  • Article by: MARK MAZZETTI, CHARLIE SAVAGE and SCOTT SHANE
  • New York Times
  • March 9, 2013 - 10:33 PM

– One morning in late September 2011, a group of American drones took off from an airstrip the CIA had built in Saudi Arabia. The drones crossed the border into Yemen, and were soon hovering over a group of trucks clustered in a desert patch of Jawf Province, a region once renowned for breeding Arabian horses.

A group of men scrambled to get to their trucks. One was Anwar al-Awlaki, the firebrand preacher, born in New Mexico, who had evolved from a peddler of Internet hatred to a senior operative in Al-Qaida’s branch in Yemen. Another was Samir Khan, another U.S. citizen who had moved to Yemen from North Carolina and was the creative force behind Inspire, the militant group’s English-language Internet magazine.

Two of the Predator drones pointed lasers on the trucks to pinpoint the targets, while the larger Reapers took aim. The Reaper pilots, operating their planes from thousands of miles away, readied for the missile shots, and fired.

It was the culmination of years of painstaking intelligence work, intense deliberation by lawyers working for President Obama and turf fights between the Pentagon and the CIA, whose parallel drone wars converged on the killing grounds of Yemen. For what was apparently the first time since the Civil War, the United States government had carried out the deliberate killing of an American citizen as a wartime enemy and without a trial.

Eighteen months later, despite the Obama administration’s effort to keep it secret, the decision to hunt and kill Al-Awlaki has become the subject of new public scrutiny, touched off by the nomination of John Brennan to be head of the CIA.

The leak last month of an unclassified Justice Department “white paper” summarizing the administration’s abstract legal arguments — prepared months after the Al-Awlaki and Khan killings amid an internal debate over how much to disclose — has ignited demands for even greater transparency, culminating last week in a 13-hour Senate filibuster that temporarily delayed Brennan’s confirmation. Some wondered aloud: If the president can order the assassination of Americans overseas, what are the limits to his power?

This account of what led to the Al-Awlaki strike, based on interviews with three dozen current and former legal and counterterrorism officials and outside experts, fills in new details of the legal, intelligence and military challenges faced by the Obama administration in what proved to be a landmark episode in U.S. history and law. It highlights the perils of a war conducted behind a classified veil, relying on missile strikes rarely acknowledged by the American government and complex legal justifications drafted for only a small group of officials to read.

The missile strike on Sept. 30, 2011, that killed Al-Awlaki — a terrorist leader whose killing lawyers in the Obama administration believed to be justifiable — also killed Khan, though officials had judged he was not a significant enough threat to warrant being specifically targeted. The next month, another drone strike mistakenly killed Al-Awlaki’s 16-year-old son, Abdulrahman, who had set off into the Yemeni desert in search of his father. Within just two weeks, the U.S. government had killed three of its own citizens in Yemen. Only one had been killed on purpose.

An evolving threat

By the time the missile found him, Al-Awlaki, 40, had been under the scrutiny of U.S. officials for more than a decade. He first came under FBI investigation in 1999 because of associations with militants and was questioned after the 2001 terrorist attacks about his contacts with three of the hijackers at his mosques in San Diego and Virginia. But at other times, presenting himself as a moderate bridge-builder, he preached at the Capitol in Washington and attended a breakfast with Pentagon officials.

But by 2002, after leaving the United States for good, he endorsed the notion that the land of his birth was at war with Islam.

In November 2009, when Maj. Nidal Malik Hasan, an Army psychiatrist, was charged with opening fire at Fort Hood in Texas and killing 13 people, Al-Awlaki finally found the global fame he had long appeared to court. Investigators quickly discovered that the major had exchanged e-mails with Al-Awlaki, though the cleric’s replies had been noncommittal. But four days after the shootings, the cleric removed any doubt, writing on his blog: “Nidal Hassan is a hero.”

U.S. intelligence agencies intensified their focus on Al-Awlaki, intercepting communications that showed the cleric’s growing clout in Al-Qaida in the Arabian Peninsula, a Yemen-based affiliate of Osama bin Laden’s terrorist network.

On Dec. 24, 2009, in the second U.S. strike in Yemen in eight days, missiles hit a meeting of leaders of the affiliate group. News accounts said one target was Al-Awlaki, who was falsely reported to have been killed. In fact, other top officials were the strike’s targets, and Al-Awlaki’s death would have been collateral damage — legally defensible as a death incidental to the military aim. As dangerous as Al-Awlaki seemed, he was proved to be only an inciter; counterterrorism analysts did not yet have incontrovertible evidence that he was, in their language, “operational.”

That would soon change. The next day, a Nigerian named Umar Farouk Abdulmutallab, 23, tried to blow up an airliner as it approached Detroit. The would-be underwear bomber told FBI agents that after he went to Yemen and tracked down Al-Awlaki, his online hero, the cleric had discussed “martyrdom and jihad” with him, approved him for a suicide mission, helped him prepare a martyrdom video and directed him to detonate his bomb over United States territory, according to court documents.

A legal quandary

David Barron and Martin Lederman had a problem. As lawyers in the Justice Department’s Office of Legal Counsel, it had fallen to them to declare whether deliberately killing Al-Awlaki, despite his citizenship, would be lawful, assuming it was not feasible to capture him. The question raised a complex tangle of potential obstacles under both international and domestic law, and Al-Awlaki might be located at any moment.

According to officials familiar with the deliberations, the lawyers threw themselves into the project and swiftly completed a short memorandum. It preliminarily concluded, based on the evidence available at the time, that Al-Awlaki was a lawful target because he was participating in the war with Al-Qaida and also because he was a specific threat to the country. The overlapping reasoning justified a strike either by the Pentagon, which generally operated within the congressional authorization to use military force against Al-Qaida, or by the CIA, which generally operated within a “national self-defense” framework deriving from a president’s security powers.

While the Constitution generally requires judicial process before the government may kill an American, the Supreme Court has held that in some contexts — like when the police, in order to protect innocent bystanders, ram a car to stop a high-speed chase — no prior permission is necessary; the lawyers concluded that the wartime threat posed by Al-Awlaki qualified as such a context.

But as months passed, Barron and Lederman grew uneasy. Due to return to academia in the fall of 2010, the two lawyers finished their second memorandum that summer. It had ballooned to about 63 pages but remained tailored to Al-Awlaki, blessing lethal force against him without addressing whether it would also be permissible to kill citizens, such as low-ranking members of Al-Qaida, in other situations.

Nearly three years later, a version of the legal analysis would become public in the “white paper,” which stripped out all references to Al-Awlaki. Divorced from its original context and misunderstood as a general statement about the scope and limits of the government’s authority to kill citizens, the free-floating reasoning would lead to widespread confusion.







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