Dirty Wars: The World Is a Battlefield

39. “The Auction of the Assassin”

WASHINGTON, DC, 2010—In the halls of the US Congress, lawmakers fell into two basic camps on the issue of targeting Anwar Awlaki, a US citizen, for assassination: silence or support. It was not until three months after the plan was revealed that a US representative spoke out against it. “I don’t support it—period,” Democrat Dennis Kucinich told me at the time. “I think people in both parties that are concerned about the Constitution should be speaking out on this.” Kucinich said he had sent several letters to the Obama administration raising questions about the potential unconstitutionality of the policy, as well as possible violations of international law, but said he had received no response.

“With all the smart people that are in that administration, they’ve got to know the risks that they’re taking here with violations of law,” Kucinich said. He called the policy “extra-constitutional, extra-judicial,” saying it “vitiates the presumption of innocence and the government then becomes the investigator, policeman, prosecutor, judge, jury, executioner all in one. That raises the greatest questions with respect to our constitution and our democratic way of life.” He added: “All this is being done in the name of national security. How do we know why certain people are being killed? I mean, who’s making that decision? It’s like a God-like power. You can put your finger on someone’s image and say, ‘This person is gone.’”

The fact that a US citizen was on the hit list was not Kucinich’s only concern. A popular Democratic president and constitutional law scholar pushing the boundaries beyond the extreme policies of the Bush administration, Kucinich believed, would have far-reaching consequences. “We are acting out of fear. We’ve forgotten who we are,” he told me. “We’re knocking out pillars of our democratic traditions here. The right to a trial? Gone. The right to be able to confront those who are accusing you? Gone. The right to be free from cruel and unusual punishment? Gone. All of these anchors are being pulled away.” He added, “Don’t think for a moment that we can do these kinds of things without it having a direct effect here at home. You can’t have one America abroad and another one at home. It’s all the same. The erosion of integrity, the erosion of democratic values, the erosion of a benevolent intent all augurs a nation in which the basic rights of our own people can no longer be secured. They are up for the auction of the assassin.”

In July 2010, Kucinich introduced a bill, HR 6010, “to prohibit the extrajudicial killing of United States citizens.” In the bill, Kucinich referred to the various executive orders dating back to the Ford administration prohibiting assassination, including Executive Order 12333, which stated: “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.” In short, the bill called on Congress to affirm that American citizens had a right to due process before being executed. “The use of extrajudicial force against a citizen of the United States that is outside of the internationally recognized battlefields of Iraq and Afghanistan constitutes a violation of the law of armed conflict,” the bill declared. “It is in the best interest of the United States to respect the rule of law and set the example for upholding the principles of international and domestic law.”

Only six other members of the House of Representatives, and not a single senator, signed on to support Kucinich’s bill. It died immediately.

By July, US intelligence officials acknowledged there had been “almost a dozen” strikes aimed at killing Awlaki. None of them had succeeded. The leading US organizations that had fought the Bush administration’s war on terror policies—the Center for Constitutional Rights (CCR) and the American Civil Liberties Union (ACLU)—had been assessing the Obama administration’s targeted killing program, primarily focused on the increased US drone strikes in Pakistan. But now that a US citizen had been identified as a target of the program, they believed it needed to be challenged in the US justice system. It was “a very important opportunity to challenge the [assassination] program because we actually have the name of someone—it is not an after-the-fact killing—it’s a case we can bring to try to stop killing with respect to someone that we know, based on what has been reported, is on a kill list,” said Pardiss Kebriaei, a CCR senior staff attorney.

Kebriaei and her colleagues reviewed the publicly available facts about Awlaki and came to the conclusion that Awlaki’s sermons and comments in interviews, while offensive to many Americans, “look very much like protected First Amendment activity to us” and that, “if he does present a threat, and if what he is doing is not protected and criminal, then he should be charged and tried and given due process like anyone, particularly a US citizen.” Kebriaei said that if the United States killed one of its own citizens in a foreign country where war had not been declared without charging the individual with a crime, it would amount to “a statement by the US that it is in fact claiming this authority and carrying out this authority to use lethal military force against suspects of terrorism, wherever they may be found. And the implications of that legally, morally, politically are terrifying to me.”

After CCR and ACLU lawyers reached Nasser Awlaki through their legal partners in Yemen, he retained them to represent him on a pro bono basis in a lawsuit challenging the right of the Obama administration to kill his son without due process. “I will do my best to convince my son to [surrender], to come back, but they are not giving me time. They want to kill my son. How can the American government kill one of their own citizens? This is a legal issue that needs to be answered,” Nasser said.

Days after Nasser first spoke with the lawyers in the United States, the Obama administration took swift action to try to ensure that the case would never be heard in US courts. On July 16, 2010, the Treasury Department officially labeled Anwar Awlaki a “Specially Designated Global Terrorist.” Rather than the president or defense secretary or the CIA director, the White House put forward the Treasury Department’s undersecretary for terrorism and financial intelligence, Stuart Levey, to make the case that Awlaki had become “operational,” directly accusing him of “preparing” and instructing Abdulmutallab “for his operation,” alleging that “after receiving this direction from Awlaki, Abdulmutallab obtained the explosive device he used in the attempted Christmas Day attack.” Levey declared that Awlaki had “involved himself in every aspect of the supply chain of terrorism—fundraising for terrorist groups, recruiting and training operatives, and planning and ordering attacks on innocents” but provided no evidence for these charges.

The designation by the Treasury Department made it a crime for American lawyers to represent Awlaki without getting a license from the government. On July 23, the ACLU and CCR filed an urgent request for a license. When they were not granted one, they sued the Treasury Department. On August 4, in response to the lawsuit, the Treasury Department changed its position, allowing the lawyers to represent Awlaki. A month later, the CCR and ACLU filed a lawsuit against President Obama, CIA director Panetta, and Defense Secretary Gates, challenging their intention to target Awlaki for assassination, charging that it was unlawful. “Outside of armed conflict, both the Constitution and international law prohibit targeted killing except as a last resort to protect against concrete, specific, and imminent threats of death or serious physical injury,” the suit alleged. “The summary use of force is lawful in these narrow circumstances only because the imminence of the threat makes judicial process infeasible. A targeted killing policy under which individuals are added to kill lists after a bureaucratic process and remain on these lists for months at a time plainly goes beyond the use of lethal force as a last resort to address imminent threats, and accordingly goes beyond what the Constitution and international law permit.” They asked a federal judge to bar the president, the CIA and JSOC “from intentionally killing” Awlaki and to order them “to disclose the criteria that are used in determining whether the government will carry out the targeted killing of a U.S. citizen.”

The Obama administration responded forcefully to the lawsuit, invoking an argument that was used throughout the Bush administration to quash lawsuits seeking to hold Donald Rumsfeld and other officials liable for their role in extrajudicial killings, torture and extraordinary rendition: the military and state secrets “privilege.” Justice Department lawyers asked the judge to dismiss the case on other grounds, but said the court should use the “state and military secrets privilege” if all else failed, saying it would be “necessary to protect against the risk of significant harm to national security.” Awlaki’s lawsuit, Assistant Attorney General Tony West argued, “puts directly at issue the existence and operational details of alleged military and intelligence activities directed at combating the terrorist threat to the United States.” He characterized the case as “a paradigmatic example of one in which no part of the case can be litigated on the merits without immediately and irreparably risking disclosure of highly sensitive and classified national security information.” He referred to Awlaki as “an operational leader of AQAP.”

The government submitted sworn declarations from Panetta, Gates and Clapper asserting the State Secrets Privilege and outlining the threat to national security they believed would be posed by litigating the case. Panetta wrote that he was invoking state secrets “to protect intelligence sources, methods and activities that may be implicated by the allegations in the Complaint” and argued that if he revealed the basis for invoking that privilege, it could harm “US national security.” Gates asserted that “the disclosure of intelligence information related to AQAP and Anwar al-Aulaqi would cause exceptionally grave harm to national security” and that the US military “cannot reveal to a foreign terrorist organization or its leaders what it knows about their activities and how it obtained that information.” In essence, the government was asserting that it had the right to kill a US citizen but that the justification for doing so was too dangerous to reveal to the American public.

Awlaki’s lawyers responded, charging:

They asserted: “The government has clothed its bid for unchecked authority in the doctrinal language of standing, justiciability, equity, and secrecy, but the upshot of its arguments is that the executive, which must obtain judicial approval to monitor a U.S. citizen’s communications or search his briefcase, may execute that citizen without any obligation to justify its actions to a court or to the public.”

INSIDE THE WHITE HOUSE, the Obama administration had already been preparing its own legal framework for killing one of its own citizens. Although the government’s threat to kill Awlaki was met with almost no outrage or questioning from the US Congress, those in the administration knew that once they killed Awlaki, the case would almost certainly end up back in court. Senior administration officials began leaking intelligence they claimed to have on Awlaki to journalists—intelligence that indicated that Awlaki had become operational and was actively engaged in plots to attack the United States, including with biological and chemical weapons.

The administration had already determined it intended to assassinate Awlaki, and President Obama wanted to be able to argue to the American people that it was the right decision. The State Department’s senior legal adviser, Harold Koh, wanted to lay out the case publicly before Awlaki was killed. He was tired of hearing scathing criticisms of the targeted killing program from European diplomats and human rights groups. In an earlier life, Koh had been known as a liberal, pro–human rights, pro–civil liberties lawyer, and so his stamp of approval was useful to the administration as it sought to defend its assassination policy in general—and bolster its decision to target a US citizen without trial.

The White House also believed a public defense of the program from Koh would be a strong preemptive strike against the critics. “The military and the CIA, too, loved the idea,” reported Newsweek correspondent Daniel Klaidman, author of the book Kill or Capture, about the targeted killing campaign. “They called the State Department lawyer ‘Killer Koh’ behind his back. Some of the operators even talked about printing up T-shirts that said: ‘Drones: If they’re good enough for Harold Koh, they’re good enough for me.’”

In advance of his public speech, the CIA and military gave Koh access to their intel on Awlaki. Koh settled in for a long day of reading in a Secured Classified Intelligence Facility. According to Klaidman, whose book was based almost entirely on leaks from administration officials, Koh

When Koh delivered his speech, on May 25, 2010, he declared, “US targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles, comply with all applicable law, including the laws of war.” Koh’s audience for the address was the annual convention of the American Society of International Law. He gave a full-throated defense of the administration’s targeted killing police, saying:

Nasser Awlaki’s lawyers did not take the position that Anwar Awlaki was an innocent man. Rather, they reasoned, if he was what the US government alleged he was—a terrorist and an operational member of al Qaeda—evidence should be presented that would hold up in a court of law. If what the administration was leaking to journalists about Awlaki’s deep involvement in terror plots, including chemical attacks against the United States, was true, then why not indict Awlaki and demand his extradition from Yemen to face trial? “If someone poses a threat, if there’s evidence against him, fine, charge him and give him due process,” said Kebriaei, one of Awlaki’s lawyers. “The president and the Defense Department or CIA, cannot just, on their own, determine in secret that these people are threats and we can not only detain them, but we can kill them.”

The administration continued to leak intelligence it claimed proved Awlaki was an operational member of al Qaeda, and media coverage began referring to Awlaki as a leader or the leader of AQAP. When Awlaki’s lawyers tried to challenge in court the government’s claims that he was a leader of AQAP and was operational, the US government lawyers shut it down. The government’s “attorney did walk into court and open with: ‘The context of this case is that we’re talking about a leader of AQAP and everything else is a state secret. We can’t talk about the evidence, but you should know,’” Kebriaei recalled. “It can be maddening to hear the government make allegations that are completely unsupported by any real facts that we’ve seen and not have any access to that information, to be in this position of seeing that reporting [in the press] and not being able to respond. The Bush administration claimed a global detention authority in the context of this war on terror, and what the Obama administration is doing is actually extending that and claiming a global killing authority,” including the right to kill American citizens.

ANWAR AWLAKI, meanwhile, was spending his days and nights on the run. He knew the Americans were actively trying to kill him. He would see drones and occasionally see missiles strike nearby. Awlaki had certainly become increasingly radical in his views of the United States, but from his perspective, it was America that had changed, not him. Not that long before, Awlaki had advocated voting for George W. Bush and praised America’s freedoms. He spoke with passion when he condemned al Qaeda and the 9/11 attacks, and talked of Muslims peacefully coexisting with the United States. But between the global crackdown that followed 9/11 and the US government’s campaign to hunt him down, something in Awlaki shifted, and he was no longer torn between allegiance to the country of his birth and his religion. “To the Muslims in America I have this to say: how can your conscience allow you to live in peaceful co-existence with the nation that is responsible for the tyranny and crimes committed against your own brothers and sisters? How can you have your loyalty to a government that is leading the war against Islam and Muslims?” Awlaki asked in one of his audio messages posted online. “Imperial hubris is leading America to its fate: a war of attrition, a continuous hemorrhage that would end with the fall and splintering of the United States of America.”

Johari Abdul Malik, who succeeded Awlaki as imam of Dar al Hijrah mosque in Virginia, was dumbfounded. He remembered Awlaki as a moderate and as a Muslim leader who bridged two worlds deftly. “To go from that individual to the person that is projecting these words from Yemen is a shock,” he said. “I don’t think we read him wrong. I think something happened to him.”