RUTHFULLY YOURS

New evidence pried from the government under the Freedom of Information Act (FOIA) proves the point I have posited here at Ordered Liberty: The federal government willfully intervened on behalf of al Qaeda terrorist Anwar al-Awlaki on October 10, 2002, undoing his arrest on felony fraud charges when he was detained at JFK International Airport in New York, and allowing him to walk away with a Saudi handler. As I argued over two years ago, the government’s story to the contrary – viz., that it was moved by sheer coincidence on the eve of Awlaki’s arrival to pull the plug on a weak case – does not pass the laugh test.

Twelve years ago, when the FBI intervened to “un-arrest” Awlaki despite the pendency of a valid felony warrant, he was a suspect – or, at the very least, a highly material witness – in the 9/11 conspiracy that resulted in the killing of nearly 3000 Americans. He went on to become one of al Qaeda’s most effective operatives. Awlaki is suspected of involvement in or incitement of the 2009 Fort Hood jihadist attack in which 13 U.S. soldiers were killed and many others wounded; the attempt to bomb a plane over Detroit on Christmas Day 2009; the attempted bombing of Times Square in 2010; and the modernization of al Qaeda’s international recruitment practices.

In 2011, he was finally killed as an enemy-combatant by an American drone strike in Yemen.

Fox News chief intelligence correspondent Catherine Herridge, who in 2012 broke the news about Awlaki’s mysterious un-arrest a decade earlier, has stayed on the case. So has Judicial Watch, thanks to whose FOIA lawsuit, the government has been compelled to turn over 900 pages of documents about its investigations of, and communications with, the jihadist. As Ms. Herridge’s new reporting elaborates, the FOIA disclosures show that Awlaki had numerous contacts with the FBI well into 2004 – when the 9/11 Commission was trying to locate him for an interview based on mounting evidence of his likely knowledge of, if not complicity in, the 9/11 conspiracy.

Consistent with our government’s seemingly incorrigible penchant to dismiss extremist Islamic incitement as harmless rhetoric, and to perceive Islamic supremacists as “moderate Islamists” with whom it can collaborate, law enforcement officials knew about Awlaki’s extensive contacts with some of the 9/11 suicide-hijackers but excused them as “random [and] the inevitable consequence of living in the small world of Islam in America.” Years later, law enforcement and military officials knew about but ignored startling jihadist communications between Awlaki and eventual Fort Hood killer Nidal Hasan.

The new information corroborates my suggestion here two years ago that, in letting Awlaki go rather than arresting him on the pending fraud charge, the government was “acting on the misguided hope of using him as an informant.” This is not only cause for potential embarrassment in its own right; it adds to the concerns over the circumstances of Awlaki’s death.

Though raised in Yemen, where he ultimately met his demise, Awlaki was born in the United States. Because he was thus an American citizen, many on the left and the libertarian right have condemned the Obama administration for killing him without any judicial process rather than capturing him and returning him to the U.S. for a civilian trial. The latter arrangement is one Obama has made for some of the worst alien terrorists, and would even make for the 9/11 plotters held at Guantanamo Bay if Congress would let him.

From a constitutional standpoint, this complaint is unavailing. Under World War II era precedents that the Supreme Court reaffirmed after 9/11, an American citizen who joins with the enemy in wartime may be treated like any other enemy combatant: attacked with lethal force, detained without trial, or tried by military commission. Wartime commanders-in-chief are responsible for prosecuting wars and do not need a judicial warrant to attack enemy operatives – certainly not overseas, outside the courts’ jurisdiction.

Critics claim the new disclosures suggest that President Obama authorized the extrajudicial killing of someone who was not only an American citizen but also a government informant. This dramatically overstates the case. Assuming Awlaki was an informant – or, more likely, a saboteur pretending to be an informant – that arrangement almost certainly ended several years before his killing. It has been over a decade since Awlaki left the United States and resettled in Yemen, where he overtly worked for al Qaeda and called for attacks against the West. There is every reason to believe this American citizen was an enemy combatant when he was killed in 2011; to date, even with the newly reported disclosures, there is no reason to believe Awlaki was an informant at that time.

Even though the legal objection to Awlaki’s wartime killing is unpersuasive, there remain other considerations. Let’s focus on three of them.

1. Successfully prosecuting a war requires good intelligence. Its acquisition is undermined by a policy that favors lethal attacks when capture (and subsequent interrogation) might be a practical alternative – a policy the Obama administration, in its aversion to Guantanamo Bay and the Bush policy of detention under the laws of war, seems to prefer. Awlaki is said to have been a pivotal player in al Qaeda plots against the United States; it is very likely that capturing him – and detaining him as an enemy combatant rather than dallying with him as a duplicitous informant – would have yielded valuable actionable intelligence.

2. While American citizenship does not immunize an enemy operative from attack, neither is it irrelevant. Awlaki was not executing combat operations at the time he was killed. If he had been encountered in the United States under such circumstances, he would have been arrested, not fired on. So, should his American citizenship – wholly apart from his potential intelligence value – have militated in favor of capturing rather than killing him? That is difficult to say.

Yemen is dangerous place. We have few reliable assets there and it may well be that capturing Awlaki would have been impractical if not impossible. On the other hand, many terrorists have been apprehended in dangerous places, including Yemen. We do not know what the competing concerns were. If capturing Awlaki was a practical alternative and the government chose to kill him instead, that would be alarming – perhaps an abuse of power even if not a violation of law.

3. Finally, there is the matter of embarrassment. Had Awlaki been captured and returned to the United States for trial, it is virtually certain that he would have attempted to build his defense around any relationship he may have had with the government. It may have become painfully apparent that Awlaki had played government agents for fools while he collaborated with terrorists; and that the government had numerous opportunities to arrest and put an end to Awlaki’s jihad, but instead allowed him to flee and continue igniting atrocities like the Fort Hood massacre.

Having worked in the Justice Department for many years, I would be stunned if the desire to avoid embarrassment factored, even slightly, into the decision to kill Awlaki rather than capture him. Irregularities and worse happen in many investigations; government often acts reprehensibly in stonewalling efforts to discover incompetence and misconduct, but it does not kill people for that purpose. In a trial situation, the embarrassing details are disclosed; defendants try to exploit them, but to little effect; and the terrorists get convicted.

Still, this government systematically and purposefully misleads Americans. Indeed, it has clearly not been forthright regarding Awlaki specifically. It is thus understandable that people would demand a thorough investigation rather than simply trust that this government targeted Awlaki for a drone strike solely because he was an enemy combatant plotting to mass-murder Americans.

I will close with what I closed with two years ago: Congress should be pressing hard for answers to the disturbing questions surrounding the government’s handling of Awlaki. Enough willful blindness.