Drone path long, thorny

Sunday, March 10, 2013

— 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 the 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 Predator dronespointed 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. 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 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, 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 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.

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 e-mails 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.”

The speech was protected by the First Amendment. American intelligence agencies intensified their focus onal-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.”

The next day, a 23-year-old Nigerian named Umar FaroukAbdulmutallab 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 or by the CIA.

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.They began drafting a second, more comprehensive memorandum, 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 overseaskilling 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 thegovernment kills an enemy leader in war or national selfdefense, Barron and Lederman concluded that the foreign-killing statute would not impede a strike.

Due to return to academia inthe 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.” THE HUNT NARROWS

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.

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 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.

As al-Awlaki had become one of the world’s most hunted terrorists, his Abdulrahman had lived the life of a normal adolescent. 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.

What the elder al-Awlaki 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.

Front Section, Pages 4 on 03/10/2013