Last month, a handful of lawyers in the U.S. got a series of unexpected phone calls from Yemen. They came from an accomplished Yemeni academic and former government official, Dr. Nasser al-Awlaki. He is the father of al-Qaida's most famous cleric, the Internet imam Anwar al-Awlaki, who has been linked to both the Fort Hood shootings and an attempted bombing on a U.S. airliner on Christmas Day.
The Awlaki pere was making the calls to key U.S. attorneys, NPR has learned, to see if he could mount a case on behalf of his American-born son against the U.S. government. By his account, the Obama administration has unfairly targeted the younger Awlaki by putting him on a CIA "capture or kill" list. By doing that, the administration has essentially green-lighted Anwar al-Awlaki's assassination — without filing any charges or having a court weigh the evidence in the case.
"This is an instance where the executive branch is claiming the power to go ahead and kill Awlaki without going through anything that resembles the traditional legal process," said New York University Law professor Sam Rascoff. "It essentially amounts to going right to the death penalty phase of a case without ever bringing it to a jury — and that ought to give us pause."
That argument may be giving the administration pause as well.
Starting A Paper Trail
Just weeks after Awlaki's father started his barrage of phone calls, an interesting thing happened: The U.S. Treasury put Awlaki on its list of designated global terrorists for the first time. Then, days later, the United Nations branded him as a bona fide member of al-Qaida. Together, the U.S. Treasury and the U.N. lists provide the first legal paper trail against Anwar al-Awlaki.
Still, he hasn't been formally charged or indicted in the U.S. Officials say they're aware that Awlaki's father was considering a lawsuit against the government, but they wouldn't say whether that is what finally motivated them to put Awlaki on terrorist watch lists now — so many months after he'd been put on the list for assassination.
A formal indictment, implicating Awlaki in both the Fort Hood shootings and the attempted bombing of a U.S. airliner on Christmas Day, could be next. He exchanged e-mails with the suspect in the Fort Hood shooting and allegedly helped train the would-be Christmas Day bomber. It could be that the Justice Department has already indicted him and just hasn't made that public yet: The indictment could be under seal.
"If an indictment hasn't been brought already, I would anticipate one coming, given that Awlaki has crossed the line from merely being a radical ideologue to actually being an operational part of al-Qaida in the Arabian Peninsula," said Juan Zarate, a National Security Council deputy during the Bush administration. "An indictment is probably the next shoe to drop."
Born In New Mexico
Awlaki was born in New Mexico 39 years ago, when his father was on a scholarship to study in the U.S. Anwar al-Awlaki grew up in the U.S., studied engineering in U.S. universities and eventually became a rather prominent imam in Virginia and San Diego. Then, shortly after the Sept. 11, 2001, attacks, he left the U.S. and became a fixture on the Internet, preaching to young Muslims in English.
Intelligence sources tell NPR that there have been almost a dozen drone and airstrikes targeting Awlaki in Yemen since late last year. They say the tide turned against him when intelligence reports indicated that he was training a cell of foreign fighters in Yemen. One of his recruits was the young Nigerian who allegedly tried to blow up Northwest Flight 253 on Christmas Day.
Dueling Court Cases Coming?
Now Awlaki is thought to be hiding out in southern Yemen, protected by leaders of his tribe. His father is hoping a court case will provide another kind of protection. If he sues the U.S. government and wins, he might be able to get an injunction that takes his son out of the CIA's crosshairs. Zarate said that's unlikely given the younger Awlaki's connection to al-Qaida's arm in Yemen.
"I don't think there is much of a case here," Zarate said. "When an individual like Anwar al-Awlaki joins the enemy force in an ongoing war, which the Obama administration calls the war on al-Qaida in a global context, there is very little an American citizen can do in court to challenge what may happen to that individual in the field of battle."
Rascoff said Awlaki's role within al-Qaida has changed so much, he was bound to be viewed as an enemy. When Awlaki was known as the group's chief ideologue, it was difficult for U.S. authorities to bring charges against him because, as an American, he had the right to free speech. Once he became an operative, the calculus shifted.
"Now we're beginning to hear more and more of Awlaki as a senior operative, as a lieutenant for Osama bin Laden, someone who is actually taking concrete terrorist decisions and actually causing operatives like the December 25th bomber to get on planes and actually blow things up," Rascoff said. "That changes everything."
While U.S. law enforcement officials say there is no doubt that sometime last year Awlaki decided to go from al-Qaida propagandist to a full-fledged operative, they haven't had to prove any of that in court.
"We have to return to our first principles and think: What are we trying to achieve here? Who is Awlaki?" Rascoff said. "Is he considered more like a criminal accused in an American court by virtue of his American citizenship, or is he something closer to an enemy fighter — in which case, the fact that he is an American shouldn't matter very much?"
The answer to that question could become clearer in the coming days if the Justice Department makes Awlaki's indictment official.