by Scott Shane
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This moralistic strain in Obama’s public statements found an echo in the voice of John Owen Brennan, whose Jesuit education at Fordham University gave him an affinity for such talk that was unexpected from a grizzled twenty-five-year veteran of the CIA. The deep suspicions of human rights activists about Brennan’s role in the agency during the Bush years had prompted them to speak out against and scuttle Obama’s plan to make him CIA chief. But Obama believed Brennan’s claim that he had no role in torture; after all, Brennan was the highest-ranking former CIA officer to endorse Obama’s presidential run in its early stages. Quite aware of his own inexperience in the national security realm, Obama appreciated what he saw as Brennan’s respectful, low-ego, factual style of briefing. He knew it would be invaluable to have a guy like Brennan as a filter for the information coming from the CIA and other agencies: Brennan would know when agency officials were manipulating the facts, omitting policy options they did not like, feuding over turf, or bluffing about threats. So Obama asked Brennan to become his counterterrorism adviser, a job in which he would see the president daily, sometimes awaken him in the middle of the night with news of threats or decisions about strikes, and win Obama’s deep gratitude. As the threat from Al Qaeda’s Yemen branch began to eclipse the terror network’s Pakistan core in 2009, Brennan’s former experience as CIA station chief next door in Saudi Arabia made his counsel even more valuable. He forged ties with Yemeni officials, including Ali Abdullah Saleh, the erratic president, and made regular trips to both Sanaa and Riyadh on behalf of the president.
More surprisingly, Brennan won over many of his critics in the human rights world in Obama’s first year in office. They heard from allies in the administration that Brennan was the most consistent voice for closing Guantanamo and that he acted as a check on the drone strikes. People like Harold Koh, the State Department’s legal adviser, who had been an outspoken liberal critic of the Bush counterterrorism programs, found that Brennan was an unexpected ally in interagency debates. One colleague likened Brennan to a dogged police detective, tracking terrorists from his cavelike office in the White House basement; another called him the priest whose blessing had become indispensable to Obama.
Such descriptions would grate on outsiders, including cynical former CIA colleagues of Brennan, who saw him as a deft politician and a facilitator for the stepped-up drone program. Civil libertarians who had come to a positive view of Brennan would wonder if they had been duped some five years later when, as CIA chief, he would work to refute and delay the Senate Intelligence Committee’s massive exposé of the agency’s interrogation program. Another notable dissenter was Dennis Blair, the retired admiral who lasted a year as director of national intelligence before being fired after several bureaucratic scuffles with Leon Panetta, the CIA director. Blair told colleagues that Obama was only the latest of many presidents to be “captured” by the CIA. Rather than helping Obama objectively assess CIA claims and demands, Brennan was actually the CIA’s very effective agent in the White House, Blair believed. He thought the White House was far too narrowly focused on names on the kill list. “The steady refrain in the White House was ‘This is the only game in town’—reminded me of body counts in Vietnam,” said Blair, who had begun his navy service during that war.
But if the CIA was winning over the president, it was partly because of those body counts. By many accounts, the agency’s drone program in Pakistan seemed to be getting results. There was little public controversy over civilian casualties; that would come later, sparked in part by the excellent work of the Bureau of Investigative Journalism in London and other groups. In the second year of his presidency, Obama’s morning reading included the unnerving stream of terrorism threats highlighted in the President’s Daily Brief, a striking number of which were traceable to Awlaki, his Al Qaeda branch, and his web-driven acolytes in the West. Now, in a satisfying evening-up of the score, there was also a swelling tally of foreign militants who had been, as the portentous euphemism put it, “removed from the battlefield.” Especially in Pakistan, it seemed, anyone Al Qaeda promoted into a management position could count on an early martyrdom.
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There were challenges in assessing who was and was not a militant dedicated to violent jihad in Yemen, but Anwar al-Awlaki posed no such problem. Both in words and in deeds he left no ambiguity about his loyalties and intentions. In the series of statements he released via the Internet from his hideouts in Shabwah province, Awlaki declared that it was every Muslim’s duty to kill Americans, including ordinary citizens. Awlaki gave an interview to a sympathetic Yemeni journalist, Abdulelah Haider Shaye, who had aggressively covered the civilian deaths in the strike on Al Majala. Shaye would later be imprisoned in Yemen for three years with the encouragement of the Obama administration, which claimed he was working closely with AQAP. In the interview, Awlaki offered a backhanded endorsement of American democracy to answer the most difficult question for Al Qaeda: How could it justify killing random civilians?
“The American people live in a democratic system and they are responsible for its policy,” Awlaki told Shaye. “It is the American people who elected the criminal Bush to two presidential terms and elected Obama, who is no different than Bush.” Civilians “are the ones who spend on the army and they are the ones who send their children to be recruited. So they are responsible,” Awlaki said.
Some civil libertarians argued that however reprehensible Awlaki’s views were, all of it was mere talk—free speech, protected by the First Amendment. But even in his speech, Awlaki was arguably pushing against the limits of constitutional protection. The Supreme Court’s ruling in Brandenburg v. Ohio, a landmark 1969 First Amendment case, involved one of the most dangerous homegrown terrorist groups in American history. The court overturned the conviction of an Ohio Ku Klux Klan leader who had talked at a rally about the possibility of what he called “revengeance” if the government continued “to suppress the white, Caucasian race.” The ruling declared that advocacy of violence could be punished as a crime only if it was “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Certainly the great majority of Awlaki’s sermons and lecture series before 2010 would merit First Amendment protection under this standard; hailing the example set by those who fought for Islam centuries ago or advising Muslims to “never trust the kuffar,” the unbelievers, would be well within the limits of free speech.
But by late 2009, Awlaki’s advocacy of violence had become open and unconditional. He was explicitly seeking to incite attacks, and the growing number of arrests of his followers for plotting violence suggested, too, that his online speeches were “likely” to “produce such action,” in the words of the Brandenburg decision. The trickiest word in the Supreme Court’s ruling was “imminent,” and the concept of the imminence of a threat would become the subject of many legal debates about targeted killing. Were Awlaki’s calls for violent action “directed to inciting or producing imminent lawless action”? Or would that require that the cleric accompany Abdulmutallab to the Amsterdam airport and order him to board the plane? At the least, the notion that Awlaki’s online calls for violence fell within the realm of protected speech appeared debatable.
In any case, as the scores of American intelligence analysts now working on Awlaki and AQAP had learned, Awlaki was no longer limiting himself to talk. In FBI interviews in late January and February 2010, Abdulmutallab had described to FBI agents in detail how Awlaki had helped plan and direct his airliner attack, connecting him with Al Qaeda, sending him to the bomb maker Asiri, arranging his martyrdom video, and reminding him to detonate the bomb only after reaching American territory. The government, with its self-defeating penchant for excessive secrecy, kept the details under wraps, allowing some opponents of targeted killing to argue that Awlaki was only a propagandist.
Then, in the weeks after the failed Christmas attack, Awlaki began exchanging encrypted e-mails with a Bangladeshi man
, Rajib Karim, who worked in information technology for British Airways in Newcastle, England. After being put in touch by Karim’s brother, Tehzeeb, who had traveled to Yemen to meet the cleric, Awlaki wrote Karim to explore how he might assist with a new airliner attack. “Our highest priority is the US,” Awlaki wrote in early February 2010, though Scotland Yard would not decipher the messages for months. “Anything there, even on a smaller scale compared to what we may do in the UK would be our choice. So the question is with the people you have is it possible to get a package or a person with a package on board a flight heading to the US?” There could be no doubt that “we” meant AQAP Karim replied that he would do his best: “Like you say I also agree that US is a better target than UK, but I do not know much about US. I can work with the bros to find out the possibilities of shipping a package to a US-bound plane.” Karim also expressed some doubts about the legitimacy of civilian targets such as the London subway or passenger aircraft, asking Awlaki for a “refutation” of religious authorities who condemned such attacks.
Awlaki had no such qualms. He pressed Karim for information that could guide AQAP’s bomb maker, Ibrahim al-Asiri, in further design changes to get explosives through airport security. “BTW,” Awlaki wrote, using casual shorthand for “by the way,” “did any of the brs [brothers] you mentioned get training on x-ray machines or understand their limitations”?
Such detailed brainstorming about mounting terrorist attacks, former American intelligence officers said, turned up regularly in intercepts of Awlaki’s private messages starting in early 2009. Some caught Awlaki discussing the possibility of a cyanide or ricin attack in the United States. The talk about how to evade detection at airports especially terrified American aviation officials. They considered Asiri an evil genius and feared he was finding ways, with Awlaki’s help, to circumvent the billions of dollars’ worth of improved airport security measures since 9/11.
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There was no uncertainty inside the Obama administration about Awlaki’s actions and intentions. But did that mean that Obama had the constitutional and legal authority to order him killed? In the weeks after the Christmas bombing attempt, David Barron and Marty Lederman, the two former Bush critics now in the Justice Department’s Office of Legal Counsel (OLC), were under intense pressure to complete a legal opinion on the legal and constitutional status of a presidential authorization to kill Awlaki.
They worked under huge disadvantages. Both were considered brilliant legal scholars, but neither had any experience in intelligence, counterterrorism, or the accumulating record of targeted killing in Pakistan and Yemen. While the subject cried out for consultation with experts in multiple fields, they could not share their assignment with outsiders. The importance of the opinion counseled an unrushed consideration of the novel issues a kill order would raise, but the White House, the CIA, and the Defense Department all wanted an answer. If Barron and Lederman took their time and the drones over Yemen missed a clear chance to kill Awlaki, it was conceivable that a terrorist plot could come to bloody fruition as a result. If they rushed their approval for the deliberate hunting and killing of an American citizen for the first time outside either a conventional war or capital punishment, they would be setting a precedent that history might come to view as reckless and dangerous. Not least, both men were acutely aware that their liberal admirers would be quick to accuse them of hypocrisy—of granting a Democratic president leeway they would have denied to his Republican predecessor—if their legal reasoning was not rock-solid.
From the OLC offices on the fifth floor of the Justice Department, they reached out to the CIA and Defense Department for the entire intelligence record on Awlaki. The top-secret reports, transcripts of intercepted phone calls, and decrypted e-mails that came back could be reviewed only in a Justice Department SCIF, or sensitive compartmented information facility—a room specially shielded against spies’ electronic probes. When they wanted to solicit the views of other lawyers elsewhere in the government, their draft opinion had to be hand-carried by a courier—the classification level was too high to permit the use of e-mail. Each hard copy was watermarked with the name of the department receiving it, to make it easy to trace any illicit photocopy.
Even at high levels in the government, officials who saw the unexpurgated case against Awlaki were surprised. Harold Koh, the State Department’s legal adviser and another former Bush critic, had followed the Awlaki saga and thought of him as a propagandist who could probably not be legally targeted. But he asked his staff to round up a stack of intelligence reports on the renegade cleric, canceled his appointments, and holed up for hours in a tiny State Department SCIF. What he learned took him by surprise. The documents showed that Awlaki was not just a hotheaded preacher or an above-the-fray religious authority issuing general fatwas, but the active, aggressive detail man revealed in the e-mails to Karim and the exchanges with Abdulmutallab. “When I saw that he had clearly given an order to blow up an airliner over US soil—which is essentially a criminal order to kill hundreds of innocent civilians—I didn’t think of him as a mere propagandist,” said Koh in an interview after Awlaki’s role in the plot had been declassified for Abdulmutallab’s sentencing. “I was actually shocked that that particular fact hadn’t been highlighted earlier.”
After a month of long days, Barron and Lederman completed their initial legal analysis. In early February, days after Abdulmutallab had begun telling a more complete story about Awlaki’s role in the plot to FBI investigators, the Justice Department informed the White House orally of their conclusion: killing Awlaki would violate neither the Constitution nor the executive order banning assassination. With the legal advice in hand, Obama did not wait. On the morning of Friday, February 5, the president and his security cabinet met at the White House and approved, with no dissent, the addition of Awlaki to the kill list. “If this had happened a year earlier in the administration, I think there might have been greater resistance—from State, potentially from Justice,” said Michael Leiter, who participated in the discussions as director of the National Counterterrorism Center. “But a year and a half in, whether it was Christmas Day or other events, you had a lot of people in the administration who were watching the streams of intelligence all the time and were recognizing the very real dangers. We’d had Fort Hood, which didn’t involve Awlaki directing things but did highlight how influential he could be. So after Christmas Day, I think a recognition had built up that we’re not going to do this willy-nilly, but there are some dangerous people out there who happen to be American citizens.” Leiter said the citizenship issue was thoroughly debated, but no one believed it should be an absolute shield for Awlaki. “The biggest question you are left with is, ‘Okay, what’s the alternative? Just let this guy keep recruiting people, keep training them, keep telling them things and putting them on airplanes and hope that we keep finding them?’ ”
If Obama felt a need for reinforcement after making his historic decision, he may have gotten it later that day, when he traveled to CIA headquarters for a memorial service for the seven CIA employees and contractors killed a few weeks earlier when an Al Qaeda double agent had blown himself up at their base in Khost, Afghanistan. Obama praised the work of the CIA officers, who he said were dedicated to “unraveling the dark web of terrorists that threaten us.” Addressing an audience that included spouses, children, and parents of those killed, he referred bluntly to the main role of the CIA base at Khost: gathering intelligence to direct drone strikes at militants in nearby Pakistan. “They served in secrecy, but today every American can see their legacy,” the president said. Their legacy was written, he said, “in the extremists who no longer threaten our country—because you eliminated them.”
With the White House decision, Awlaki, like others placed on the JSOC kill list in Yemen, was assigned a code name picked from a map of Ohio. The CIA didn’t bother with code names, but the military insisted on them. Perhaps calling them “objectives” objectified them, helped distance t
he hunters from the human beings they were trying to kill, the way Middle Eastern males in FBI memos became MEMs, military-age males in Pentagon jargon became MAMs, and dead civilians became “CD,” for collateral damage. The military’s choice of Ohio was one of the random facts that made Pentagon nomenclature so opaque; perhaps it had been the whim of an anonymous military planner with roots in the state. In Awlaki’s case, the name selected was a little town of twenty-five thousand in the westcentral part of the state, notable for a collection of houses made from welded steel, product of a 1930s experiment in prefabricated housing. Officials said the name was chosen at random. But it seemed appropriate for an American who had turned against his country and was calling for attacks from within, for it hinted at that mythic symbol of deception and betrayal the Trojan Horse. For JSOC’s search team and the spies and eavesdroppers supporting them, Awlaki had become Objective Troy.
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The president’s decision on Awlaki rested on Barron and Lederman’s legal reasoning, which they laid out in writing in a memo dated February 19 and delivered to Attorney General Eric Holder. Oddly, the memo called the proposed drone target “Shaykh Anwar Awlaki,” granting him the respectful honorific used by his militant acolytes. Awlaki could legally be targeted by the CIA and the military on the basis of the agency’s conclusion that he posed “a continued and imminent threat” to the United States, said the memo, later released with heavy redactions after a lengthy court battle by The New York Times and the American Civil Liberties Union. Ordinarily, an “imminent” threat was the kind posed by a gunman pointing a loaded weapon at an innocent person. But Barron and Lederman evidently concluded that terrorists assumed to be plotting in secret qualified as an imminent threat, since requiring the government to wait until they acted would be self-defeating. Because the evidence showed that Awlaki as a leader of AQAP was determined to attack the United States and was working relentlessly toward that goal, there was no requirement that the intelligence agencies know the details and timing of a specific plot. They could assume that an attack was always imminent.
