Without a trial

How the government came to kill Anwar al-Awlaki, a U.S. citizen

Mark Mazzetti, Charlie Savage and Scott Shane / New York Times News Service /

Published Mar 17, 2013 at 05:00AM

WASHINGTON —

One morning in late September 2011, a group of American drones took off from an airstrip the CIA had built in the remote southern expanse of 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 of the impoverished country once renowned for breeding Arabian horses.

A group of men who had just finished breakfast 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 American 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 Barack 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 cloaked in secrecy, the decision to hunt and kill al-Awlaki has become the subject of new public scrutiny and debate, touched off by the nomination of John Brennan, Obama's counterterrorism adviser, 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 in a 13-hour Senate filibuster earlier this month that temporarily delayed Brennan's confirmation. Some wondered aloud: If the president can order the assassination of Americans overseas, based on secret intelligence, 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 American 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 Sept. 30, 2011, that killed al-Awlaki — a terrorist leader whose death 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 American government had killed three of its own citizens in Yemen. Only one had been killed on purpose.

An evolving threat

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 emails with al-Awlaki, though the cleric's replies had been cautious and noncommittal. But four days after the shootings, the cleric removed any doubt about where he stood.

“Nidal Hassan is a hero,” he wrote on his widely read blog. “He is a man of conscience who could not bear living the contradiction of being a Muslim and serving in an army that is fighting against his own people.”

As chilling as the message was, it was still speech protected by the First Amendment. American 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 American 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 of the group were the strike's specific 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 23-year-old Nigerian named Umar Farouk Abdulmutallab 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, a civilian agency which generally operated within a “national self-defense” framework deriving from a president's security powers.

They also analyzed other bodies of law to see whether they would render a strike impermissible, concluding that they did not. For example, the Yemeni government had granted permission for airstrikes on its soil as long as the United States did not acknowledge its role, so such strikes would not violate Yemeni sovereignty.

And 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 from a judge is necessary; the lawyers concluded that the wartime threat posed by al-Awlaki qualified as such a context, and so his constitutional rights did not bar the government from killing him without a trial.

But as months passed, Barron and Lederman grew uneasy. They told colleagues there were issues they had not adequately addressed, particularly after reading a legal blog that focused on a statute that bars Americans from killing other Americans overseas. In light of the gravity of the question and with more time, they began drafting a second, more comprehensive memo, expanding and refining their legal analysis and, in an unusual step, researching and citing dense thickets of intelligence reports supporting the premise that al-Awlaki was plotting attacks.

As they researched the rarely invoked overseas-murder statute, Barron and Lederman discovered a 1997 district court decision involving a woman who was charged with killing her child in Japan. A judge ruled that the terse overseas-killing law must be interpreted as incorporating the exceptions of its domestic-murder counterpart, writing, “Congress did not intend to criminalize justifiable or excusable killings.”

And by arguing that it is not unlawful “murder” when the government kills an enemy leader in war or national self-defense, Barron and Lederman concluded that the foreign-killing statute would not impede a strike. They had not resorted to the Bush-style theories they had once denounced of sweeping presidential war powers to disregard congressionally imposed limitations.

Due to return to academia in the fall of 2010, the two lawyers finished their second al-Awlaki memorandum, whose reasoning was widely approved by other administration lawyers, that summer. It had ballooned to about 63 pages but remained narrowly tailored to al-Awlaki's circumstances, blessing lethal force against him without addressing whether it would also be permissible to kill citizens, like low-ranking members of al-Qaida, in other situations.

Nearly three years later, a version of the legal analysis portions would become public in the “white paper,” which stripped out all references to al-Awlaki while retaining echoes, like its discussion of a generic “senior operational leader.” 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.

Heightening intelligence

Now the lawyers had twice signed off on killing al-Awlaki if he could not be captured — but the government still had no idea where in Yemen he was hiding. During the first half of 2010 the CIA was just ramping up intelligence gathering in the country, and Saudi spies had yet to penetrate militant networks in Yemen deeply enough to learn the whereabouts of leaders of al-Qaida in the Arabian Peninsula.

Al-Awlaki appears to have hidden most of the time in Shabwa province, several hours' drive southeast of the capital, turf for al-Qaida and also the traditional territory of his family's powerful tribe, the Awaliq. Yemen's cagey longtime president, Ali Abdullah Saleh, negotiated with tribal leaders, who offered to hold al-Awlaki under house arrest, according to a Yemeni official. The talks were inconclusive.

And there were other problems. A disastrous American missile strike in May 2010 accidentally killed a deputy provincial governor in Yemen and infuriated Saleh, effectively suspending the clandestine war. It would be months before the Pentagon's next strike in Yemen.

The CIA and the Pentagon used the pause in the air campaign to develop more sources inside the country. The National Security Agency stepped up monitoring of cellphones in Yemen and penetrated computer networks to intercept electronic messages. Aware that Obama, shaken by the underwear bombing attempt, was closely following the hunt, agencies competed to get new scraps about al-Awlaki into the president's daily intelligence briefing, a former Defense Intelligence Agency analyst said.

And, very quietly, the CIA began to build its own drone base in Saudi Arabia.

In late 2010 or early 2011, Yemeni security troops surrounded a village in Shabwa province where al-Awlaki was reported to be hiding, said Gregory Johnsen, a Princeton scholar and author of “The Last Refuge: Yemen, al-Qaeda, and America's War in Arabia.” But a house-to-house search did not find him.

At the White House, frustration was mounting.

The hunt narrows

Even as the hunt went on, Yemen's strongman began to lose his grip on power as his country was caught up in the revolts sweeping the Arab world in early 2011.

That June, a barrage of rockets struck the room of the presidential palace where Saleh was hiding, severely injuring him and effectively ending his rule.

The weakening of Saleh gave the Americans more latitude for the al-Awlaki manhunt. By then, American and Saudi spies had turned a number of militants into sources, helping to guide American strikes.

In May 2011, days after the American commando raid in Pakistan that killed bin Laden, the Pentagon's Joint Special Operations Command, the hub for classified Army and Navy commando units, had its best chance to kill al-Awlaki as he moved around Shabwa province. Drones and Marine Harrier jets fired at his truck, but he managed to escape and took refuge in a cave. According to Johnsen, the Princeton expert, al-Awlaki told friends that the episode “increased my certainty that no human being will die until they complete their livelihood and appointed time.”

Finally, by late September 2011, the CIA base in Saudi Arabia was ready. Obama's counterterrorism adviser, Brennan, directed that lead responsibility for the al-Awlaki hunt would be shifted to the agency. David Petraeus, who had taken over as CIA director on Sept. 6, ordered several drones to be relocated from Pakistan to Saudi Arabia. By mid-September, the Americans were closing in — with updates from a CIA source inside al-Qaida in the Arabian Peninsula, officials say. That was when a very different search for al-Awlaki began.

As al-Awlaki had become one of the world's most hunted terrorists, his 16-year-old son Abdulrahman had lived the life of a normal adolescent. He liked sports and music and kept his Facebook page regularly updated. But now he sneaked out of the family home in Sana, Yemen's capital, leaving an apologetic note for his mother saying that he had gone to find his father.

But by the time the teenager headed to Shabwa, his father had left for Jawf province, hundreds of miles away. Accompanied by Khan, the elder al-Awlaki moved about the rugged territory, wary of staying anywhere for long.

What he did not know was that the CIA's source was reporting the movements. On the morning of Sept. 30, guided by the tipster, the fleet of drones arrived above Jawf. Missiles destroyed the convoy.

Then, on Oct. 14, a missile apparently intended for an Egyptian al-Qaida operative, Ibrahim al-Banna, hit a modest outdoor eating place in Shabwa. The intelligence was bad: al-Banna was not there, and among about a dozen men killed was the young Abdulrahman al-Awlaki, who had no connection to terrorism and would never have been deliberately targeted.

It was a tragic error and, for the Obama administration, a public relations disaster, further muddying the moral clarity of the previous strike on his father and fueling skepticism about American assertions of drones' surgical precision. The damage was only compounded when anonymous officials at first gave the younger al-Awlaki's age as 21, prompting his grieving family to make public his birth certificate.

He had been born in Denver, said the certificate from the Colorado health department. In the United States, at the time his government's missile killed him, the teenager would have just reached driving age.