History > 2011 > USA > Terrorism (V)

Seeing Terror Risk,

U.S. Asks Journals

to Cut Flu Study Facts

December 20, 2011
The New York Times
By DENISE GRADY and WILLIAM J. BROAD

For the first time ever, a government advisory board is asking scientific journals not to publish details of certain biomedical experiments, for fear that the information could be used by terrorists to create deadly viruses and touch off epidemics.

In the experiments, conducted in the United States and the Netherlands, scientists created a highly transmissible form of a deadly flu virus that does not normally spread from person to person. It was an ominous step, because easy transmission can lead the virus to spread all over the world. The work was done in ferrets, which are considered a good model for predicting what flu viruses will do in people.

The virus, A(H5N1), causes bird flu, which rarely infects people but has an extraordinarily high death rate when it does. Since the virus was first detected in 1997, about 600 people have contracted it, and more than half have died. Nearly all have caught it from birds, and most cases have been in Asia. Scientists have watched the virus, worrying that if it developed the ability to spread easily from person to person, it could create one of the deadliest pandemics ever.

A government advisory panel, the National Science Advisory Board for Biosecurity, overseen by the National Institutes of Health, has asked two journals, Science and Nature, to keep certain details out of reports that they intend to publish on the research. The panel said conclusions should be published, but not “experimental details and mutation data that would enable replication of the experiments.”

The panel cannot force the journals to censor their articles, but the editor of Science, Bruce Alberts, said the journal was taking the recommendations seriously and would probably withhold some information — but only if the government creates a system to provide the missing information to legitimate scientists worldwide who need it.

The journals, the panel, researchers and government officials have been grappling with the findings for several months. The Dutch researchers presented their work at a virology conference in Malta in September.

Scientists and journal editors are generally adamant about protecting the free flow of ideas and information, and ready to fight anything that hints at censorship.

“I wouldn’t call this censorship,” Dr. Alberts said. “This is trying to avoid inappropriate censorship. It’s the scientific community trying to step out front and be responsible.”

He said there was legitimate cause for the concern about the researchers’ techniques falling into the wrong hands.

“This finding shows it’s much easier to evolve this virus to an extremely dangerous state where it can be transmitted in aerosols than anybody had recognized,” he said. Transmission by aerosols means the virus can be spread through the air via coughing or sneezing.

Ever since the tightening of security after the terrorist attacks on Sept. 11, 2001, scientists have worried that a scientific development would pit the need for safety against the need to share information. Now, it seems, that day has come.

“It’s a precedent-setting moment, and we need to be careful about the precedent we set,” Dr. Alberts said.

Both studies of the virus — one at the Erasmus Medical Center in Rotterdam, in the Netherlands, and the other at the University of Wisconsin-Madison — were paid for by the National Institutes of Health. The idea behind the research was to try to find out what genetic changes might make the virus easier to transmit. That way, scientists would know how to identify changes in the naturally occurring virus that might be warning signals that it was developing pandemic potential. It was also hoped that the research might lead to better treatments.

Dr. Anthony Fauci, head of the National Institute of Allergy and Infectious Diseases, said the research addressed important public health questions, but added, “I’m sure there will be some people who say these experiments never should have been done.”

Dr. Fauci said staff members at the institutes followed the results of the research and flagged it as something that the biosecurity panel should evaluate.

The lead researcher at the Erasmus center, Ron Fouchier, did not respond to requests for an interview. The center issued a statement saying that researchers there had reservations about the panel’s recommendation, but would observe it.

The Wisconsin researcher, Yoshihiro Kawaoka, was out of the country and “not responding to queries,” according to a spokesman for the university. But the school said its researchers would “respect” the panel’s recommendations.

David R. Franz, a biologist who formerly headed the Army defensive biological lab at Fort Detrick, Md., is on the board and said its decision to intervene, made in the fall, was quite reasonable.

“My concern is that we don’t give amateurs — or terrorists — information that might let them do something that could really cause a lot a harm,” he said in an interview.

“It’s a wake-up call,” Dr. Franz added. “We need to make sure that our best and most responsible scientists have the information they need to prepare us for whatever we might face.”

Amy Patterson, director of the office of biotechnology activities at the National Institutes of Health, in Bethesda, Md., said the recommendations were a first.

“The board in the past has reviewed manuscripts but never before concluded that communications should be restricted in any way,” she said in a telephone interview. “These two bodies of work stress the importance of public health preparedness to monitor this virus.”

Ronald M. Atlas, a microbiologist at the University of Louisville and past president of the American Society for Microbiology, who has advised the federal government on issues of germ terrorism, said the hard part of the recommendations would be creating a way to move forward in the research with a restricted set of responsible scientists.

He said that if researchers had a better understanding of how the virus works, they could develop better ways to treat and prevent illness. “That’s why the research is done,” he said.

The government, Dr. Atlas added, “is going to struggle with how to get the information out to the right people and still have a barrier” to wide sharing and inadvertently aiding a terrorist. “That’s going to be hard.”

Given that some of the information has already been presented openly at scientific meetings, and that articles about it have been sent out to other researchers for review, experts acknowledged that it may not be possible to keep a lid on the potentially dangerous details.

“But I think there will be a culture of responsibility here,” Dr. Fauci said. “At least I hope there will.”

The establishment of the board grew out of widespread fears stemming from the 2001 terrorist attacks on the United States and the ensuing strikes with deadly anthrax germs that killed or sickened 22 Americans.

The Bush administration called for wide controls on biological information that could potentially help terrorists. And the scientific community firmly resisted, arguing that the best defenses came with the open flow of information.

In 2002, Dr. Atlas, then the president-elect of the American Society for Microbiology, objected publicly to “anything that smacked of censorship.”

The federal board was established in 2004 as a compromise and is strictly advisory. It has 25 voting members appointed by the secretary of health and human services, and has 18 ex officio members from other federal agencies.

Federal officials said Tuesday that the board has discussed information controls on only three or four occasions. The first centered on the genetic sequencing of the H1N1 virus that caused the 1918 flu pandemic, in which up to 100 million people died, making it one of the deadliest natural disasters in human history.

“We chose to recommend publication without any modifications,” Dr. Franz, the former head of the Army lab, recalled. “The more our good scientists know about problems, the better prepared they are to fix them.”

This fall, federal officials said, the board wrestled with the content of H5N1 papers to Science and Nature, and in late November contacted the journals about its recommendation to restrict information on the methods that the scientists used to modify the deadly virus.

“The ability of this virus to cross species lines in this manner has not previously been appreciated,” said Dr. Patterson of the National Institutes of Health. “Everyone involved in this matter wants to do the proper thing.”

    Seeing Terror Risk, U.S. Asks Journals to Cut Flu Study Facts, NYT, 20.12.2011,
    http://www.nytimes.com/2011/12/21/health/fearing-terrorism-us-asks-journals-to-censor-articles-on-virus.html

Hobbling the Fight

Against Terrorism

December 7, 2011
The New York Times

Lawmakers from the House and Senate are working on provisions in the military budget bill that would take the most experienced and successful antiterrorism agencies — the F.B.I. and federal prosecutors — out of the business of interrogating, charging and trying most terrorism cases, and turn the job over to the military.

These new rules would harm the justice system and national security. They would hinder intelligence-gathering, make it harder to track down terrorists and make other countries less likely to cooperate.

Those are not our conclusions, although we strongly agree. They are the views of James Clapper, the director of national intelligence; Robert Mueller III, the director of the Federal Bureau of Investigation; and Lisa Monaco, the assistant attorney general for national security. The defense secretary, Leon Panetta, who used to run the intelligence services, has said that the military doesn’t want this responsibility. Lawmakers are ignoring them.

At issue are a series of amendments added by the House and the Senate to the National Defense Authorization Act, the annual military budget bill. They mandate military detention for most terrorism suspects (although they focus especially on Muslims). The House version would bar trying these prisoners in federal court, while the Senate version would make that very unlikely.

This means civilian law enforcement agencies with greater experience would be cut out and intelligence-gathering would be hobbled. Countries would be less likely to turn over prisoners to American authorities if they would land in military detention. Both versions of the bill would make the detention camp in Guantánamo Bay, Cuba, a permanent symbol of injustice and cruelty around the world. Both leave open the possibility of subjecting American citizens to military detention without charge or trial.

These measures are not just bad policy, they are entirely unnecessary.

Federal authorities have jailed terrorists by the score since Sept. 11, 2001. The military tribunals created by President George W. Bush and modified by President Obama have not managed to try any of the major figures behind the 9/11 attacks, who remain in Guantánamo. Existing law covers capture and detention of prisoners in battle. The military does not want new powers to interrogate and investigate terrorist suspects, especially those arrested in the United States.

President Obama, who has more than shown his mettle in combating terrorism, has allowed conservatives from both parties to entirely dominate the issue of military detention and trial. Now he has finally spoken up and threatened to veto the military budget bill if it ends up looking like it does now.

We hope the House and Senate conferees will strip out the military detention and trial provisions, but we are pessimistic. Government and Congressional officials told us on Tuesday that members of Congress are not taking the veto threat seriously.

Vetoing the military budget would pose political risks for Mr. Obama. Signing provisions like the ones in the House and Senate versions into law would do lasting harm to the country.

    Hobbling the Fight Against Terrorism, NYT, 7.12.2011,
    http://www.nytimes.com/2011/12/08/opinion/hobbling-the-fight-against-terrorism.html

Senate Approves Requiring Military Custody in Terror Cases

November 29, 2011
The New York Times
By CHARLIE SAVAGE

WASHINGTON — Defying the Obama administration’s threat of a veto, the Senate on Tuesday voted to increase the role of the military in imprisoning suspected members of Al Qaeda and its allies — including people arrested inside the United States.

By a vote of 61 to 37, the Senate turned back an effort to strip a major military bill of a set of disputed provisions affecting the handling of terrorism cases. While the legislation still has several steps to go, the vote makes it likely that Congress will eventually send to President Obama’s desk a bill that contains detainee-related provisions his national-security team has said are unacceptable.

The most disputed provision would require the government to place into military custody any suspected member of Al Qaeda or one of its allies connected to a plot against the United States or its allies. The provision would exempt American citizens, but would otherwise extend to arrests on United States soil. The executive branch could issue a waiver and keep such a prisoner in the civilian system.

A related provision would create a federal statute saying the government has the legal authority to keep people suspected of terrorism in military custody, indefinitely and without trial. It contains no exception for American citizens. It is intended to bolster the authorization to use military force against the perpetrators of the terrorist attacks of Sept. 11, 2001, which lawmakers enacted a decade ago.

The administration has strongly opposed the mandatory military custody provision, saying it “would raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets.”

In recent days, several top national security officials — including the secretary of defense, Leon E. Panetta; the director of national intelligence, James R. Clapper; and the director of the Federal Bureau of Investigation, Robert S. Mueller III, have voiced opposition to the proposal, as have several former counterterrorism officials from the Bush administration.

But among Republican senators, there was nearly unanimous support for keeping the detainee provisions in the bill: 44 Republicans voted for them, while two — Mark Kirk of Illinois and Rand Paul of Kentucky — voted to remove them.

By contrast, members of the Democratic caucus were deeply divided: 35 wanted to strip the detainee provisions from the bill, but 17 voted to keep them in it. About half of the Democrats who supported keeping the provisions were members of the Senate Armed Services Committee, whose chairman, Carl Levin of Michigan, shaped the package with Republicans.

“We are at war with Al Qaeda, and people who are determined to be part of Al Qaeda should be treated as people who are at war with us,” Mr. Levin said in the debate leading up to the vote.

Mr. Levin also said that he supported the use of civilian trials for some terrorism cases and said that the waiver in the bill would leave that option available to the administration. And he repeatedly quoted from a 2004 Supreme Court case approving the detention without trial of an American citizen captured in Afghanistan and accused of fighting with the Taliban.

Senator Mark Udall, a Colorado Democrat and a member of the Armed Services Committee who sponsored the unsuccessful proposal to strip the detainee proposals from the bill, warned that the provisions could “destabilize” counterterrorism efforts, “open the door to domestic military police powers and possibly deny U.S. citizens their due process rights.” He argued that lawmakers should slow down and revisit the issue later.

Senator Lindsey Graham, Republican of South Carolina, said that the time had come for Congress to enact a statutory framework for how terrorism cases should be handled.

Mr. Graham also argued that detaining a terrorist for the purpose of interrogating him about planned attacks — even on domestic soil — should be viewed as a wartime act, not an exercise of “police” power that should raise any concerns about the military taking over law enforcement functions.

“I don’t believe fighting Al Qaeda is a law enforcement function,” Mr. Graham said. “I believe our military should be deeply involved in fighting these guys at home or abroad.”

    Senate Approves Requiring Military Custody in Terror Cases, NYT, 29.11.2011,
    http://www.nytimes.com/2011/11/30/us/politics/senate-approves-military-custody-for-terror-suspects.html

U.S. Settles Suit Over Anthrax Attacks

November 29, 2011
The New York Times
By SCOTT SHANE

WASHINGTON — The federal government has agreed to pay $2.5 million to the widow and children of the first person killed in the anthrax letter attacks of 2001, settling a lawsuit claiming that the Army did not adequately secure its supply of the deadly pathogen.

The settlement with the family of Robert Stevens, a tabloid photo editor in Florida, follows an eight-year legal battle that exposed slack rules and sloppy recordkeeping at the Army’s biodefense laboratory at Fort Detrick, in Frederick, Md. As part of the agreement, Justice Department lawyers are seeking to have many documents that were uncovered in the litigation kept under court seal or destroyed.

Mr. Stevens’s widow, Maureen, filed suit against the government in 2003, as evidence accumulated that the anthrax powder in the lethal letters had come from an Army laboratory. The F.B.I. finally concluded in 2008 that the letters were sent by Bruce E. Ivins, a microbiologist who worked on anthrax vaccines at the Army lab in Maryland, though some of his colleagues and friends have maintained that he was innocent.

Dr. Ivins killed himself in 2008 as prosecutors prepared to indict him in the attacks, in which letters were sent to media organizations and two senators in September and October of 2001, killing five people and sickening at least 17 others. The letters prompted fear nationwide, forced members of Congress and the Supreme Court from contaminated buildings and set off a long and troubled investigation by the F.B.I.

Mr. Stevens, 62, died on Oct. 5, 2001, days after inhaling anthrax powder at work. His death in the anxious aftermath of the Sept. 11 attacks at first led officials to believe that Al Qaeda had carried out a germ assault as well, but the F.B.I. soon began to focus on the possibility that an American biodefense insider had mailed domestic supplies of the bacteria.

No letter was recovered from the offices of American Media, the publisher of The National Enquirer, The Globe, Star and other supermarket tabloids, where Mr. Stevens worked part time. But investigators concluded that a poisoned letter had been mailed to one of the tabloids, as well as to network television anchors, The New York Post and two Democratic senators, Tom Daschle and Patrick J. Leahy.

The Stevens settlement marks the second multimillion-dollar payment by the government in the anthrax case. In 2008, the Justice Department agreed to pay $4.6 million to settle a lawsuit by another former Fort Detrick scientist, Dr. Steven J. Hatfill, whom investigators pursued for years before clearing him.

Richard D. Schuler, a lawyer for Maureen Stevens, 68, and Mr. Stevens’s three grown children, Nicholas Stevens, Heidi Hogan and Casey Tozzi, said documents and testimony showed minimal vetting of government scientists who worked with anthrax and other pathogens, weak laboratory security and haphazard inventory controls before 2001.

“What we found was a horror show, basically,” Mr. Schuler said. “There was a serious potential danger to society from a biological attack as a result of either an insider or outsider getting access to these lethal organisms.”

Mr. Schuler said testimony and documents from the government showed marked improvements in security since the anthrax letters. But he said he still believed that “a determined insider” could use government supplies to mount a germ attack.

Several reviews of biosecurity at the Army lab in Frederick, the United States Army Medical Research Institute of Infectious Diseases, found severe problems that dated to long before the anthrax attacks. Security has been tightened, officials say, but as recently as 2009 the Army suspended most research on pathogens for a time after discovering that some pathogens stored there were not listed in a lab database.

The anthrax attacks also exposed lax standards for assessing employees with access to germ stocks. A panel of psychiatrists who reviewed the anthrax case for the F.B.I. concluded last year that Dr. Ivins showed signs of serious mental illness before he began work in 1980 and should never have received a security clearance.

Dr. Ivins’s widow, Diane, wrote to the federal court in Florida last year asking that her husband’s medical and psychiatric records be kept confidential. They are among the records covered by protective orders issued in the case.

A Justice Department spokesman, Charles S. Miller, said he could not comment on why the government was trying to preserve the secrecy of documents beyond what was already in the public court file. Court orders prohibit the disclosure of security measures at the Army lab and records of missing pathogens and other lapses.

For the Justice Department, simultaneously pursuing a criminal investigation and defending the Stevens civil suit has made for a tricky balancing act. By hunting for the anthrax mailer at Fort Detrick, F.B.I agents and prosecutors highlighted the very security problems the lawsuit was seeking to expose.

In a July filing in the civil case, Justice Department lawyers said Dr. Ivins “did not have the specialized equipment” in his lab to make the dry anthrax powder in the letters — appearing to contradict the department’s claims in the criminal case. Days later, the lawyers retracted the statement.

An Army spokesman, George B. Wright, said “significant progress” has been made in improving security at the biodefense lab, including continual evaluation of lab workers, tighter control of access to areas where pathogens are stored and continuous monitoring by closed-circuit television.

    U.S. Settles Suit Over Anthrax Attacks, NYT, 29.11.2011,
    http://www.nytimes.com/2011/11/30/us/anthrax-victims-family-to-receive-2-5-million-in-settlement.html

Courts Test Miranda Rights Limits in Terror Cases

November 23, 2011
The New York Times
By BENJAMIN WEISER

The government’s disclosure of a plot to assassinate the Saudi ambassador to the United States last month came with some reassuring news: the suspect, an Iranian-American, was in custody, had confessed and had provided valuable intelligence on Iran’s role in supporting the plan.

But unlike many confessions, these statements did not come in the hours after the arrest, or in the presence of a lawyer.

The purported cooperation by the defendant, Mansour J. Arbabsiar, occurred during the first 12 days he was in custody after his arrest on Sept. 29; prosecutors said that in the days after his arrest, Mr. Arbabsiar had “knowingly and voluntarily” waived his rights to remain silent, to have a lawyer present during his interrogation and to be quickly taken before a judge.

But Mr. Arbabsiar’s lawyer, Sabrina Shroff, said in a recent interview that she intended to seek a hearing on whether the “consent was freely given, or whether it was unlawfully extracted,” given the gap in time between her client’s arrest and his initial court appearance on Oct. 11.

“There has to be a deep concern about the voluntariness of consent to that long a period of detention,” she said.

Her comments provide an early look at the defense’s legal strategy in a case that has gained widespread attention because of questions over Iran’s alleged role, and because of the wealth of information that prosecutors said they obtained from Mr. Arbabsiar after he waived his Miranda rights.

The early jostling over how Mr. Arbabsiar came to offer his statements represents the latest effort in a tug-of-war, both legal and political, over using the criminal justice system to handle terrorism cases. The debate intensified after the failed attempt to bomb a Detroit-bound airliner on Christmas Day 2009 by the so-called underwear bomber, Umar Farouk Abdulmutallab.

That case highlighted the Obama administration’s claim that it could use a lengthy “public safety” delay in warning a suspect of his rights, without sacrificing the ability to use his statements as evidence. The administration’s position was bolstered in September when a federal judge in Detroit refused to suppress statements made by Mr. Abdulmutallab during the 50 minutes or so in which he was questioned, without having received a Miranda warning, before going into surgery. He has since pleaded guilty.

Yet defense lawyers claim that government interrogators have increasingly stretched the rules governing the rights of criminal defendants in custody, and that Mr. Arbabsiar’s case is an example. The case could also help to clarify another issue: what happens when the government says a terror suspect repeatedly waived his Miranda rights during interrogations that lasted weeks or even months?

The practice has been seen in various forms in other cases, like those of the Pakistani immigrant arrested last year in a failed attempt to set off a bomb in Times Square, and a Somali man questioned for months on a United States naval ship before being brought to Manhattan in July.

In the case of Mr. Arbabsiar, a used-car salesman from Corpus Christi, Tex., prosecutors say he conspired with an Iranian officer to hire assassins from a Mexican drug cartel for $1.5 million to kill the Saudi ambassador to the United States, Adel al-Jubeir. The plot was “directed and approved by elements of the Iranian government,” Attorney General Eric H. Holder Jr. said.

John O. Brennan, the Obama administration’s top counterterrorism adviser, said recently that the Arbabsiar case showed Miranda had not been “an impediment” to eliciting intelligence during an initial interrogation.

Indeed, if the courts eventually uphold the admissibility of Mr. Arbabsiar’s statements, that would further strengthen “the government’s ability to pursue both intelligence and law enforcement goals without sacrificing one or the other,” said Daniel C. Richman, a Columbia law professor and former federal prosecutor.

An defense lawyer experienced in terrorism cases, Joshua L. Dratel, agreed. He said that until a defendant like Mr. Arbabsiar won a suppression motion, “it’s not like the government is worried about pushing the outside of the envelope.”

The interrogation of Mr. Arbabsiar was cited in a sealed, four-page letter that the office of Preet Bharara, the United States attorney in Manhattan, sent to the court on Oct. 6, while questioning was under way. The letter said Mr. Arbabsiar had “without counsel, knowingly and voluntarily waived his Miranda rights and his right to a speedy presentment” each day, and had signed waivers to that effect.

The letter, now public, described how agents were “vigorously and expeditiously pursuing leads relating to the defendant’s statements,” and said “regular access” to Mr. Arbabsiar had allowed them “to promptly verify with him the accuracy of information developed in the investigation.”

The Arbabsiar interrogation resembled that of the would-be Times Square bomber, Faisal Shahzad, who was arrested aboard a plane at Kennedy International Airport.

In a similar letter, prosecutors noted that each day since his arrest, Mr. Shahzad had “knowingly and voluntarily waived his Miranda rights and executed a written waiver of speedy presentment.”

He was being questioned, they said, about “sensitive national security and law enforcement matters,” with the goal of preventing potential future attacks and gathering other “actionable intelligence.”

Mr. Shahzad pleaded guilty soon thereafter, and his statements were not tested in court.

The Miranda issue did reach a judge in the case of a Queens man charged in what the authorities said was a plot by Al Qaeda to detonate a bomb in the New York subway system.

The defendant, Adis Medunjanin, was interviewed over two days in January 2010, waiving his Miranda rights and his right to a speedy court appearance, the office of the United States attorney in Brooklyn, now Loretta E. Lynch, has said in a court filing.

Mr. Medunjanin made it clear “that he desired to cooperate with the government,” the office wrote, “and provided very detailed information about terrorist-related activities by himself and others.”

The defense moved to suppress his statements on the ground that they had been elicited improperly, but Judge Raymond J. Dearie of the United States District Court denied the motion, and the case is pending trial.

A challenge may also arise in the case of the Somali defendant, Ahmed Abdulkadir Warsame. He was apprehended in April and questioned aboard a Navy vessel for about two months without being advised of his Miranda rights, prosecutors have said. Then, after a break of several days, different interrogators, acting in a law enforcement capacity, questioned him for about a week, the government said, adding that he had waived his rights each day.

One of his lawyers, Lee Ginsberg, said a challenge to the voluntary nature of Mr. Warsame’s statements has “been under consideration from the beginning, given the nature of his detention and the process of the questioning.”

The judge in the Arbabsiar case, John F. Keenan, citing the defendant’s “alleged admissions,” suggested in court last month that the defense might file a motion “relating to Miranda.”

“Most certainly, your honor,” replied Mr. Arbabsiar’s lawyer, Ms. Shroff, a federal public defender.

Ms. Shroff’s supervisor, David E. Patton, chief of the federal defenders office, said, “The right to remain silent and the right to counsel are fundamental Constitutional protections meant to guard against government abuse.

“So, of course,” he continued, “we have very serious concerns about government claims that our clients are repeatedly waiving those rights over extended periods of time.”

Mr. Patton, whose office also represented Mr. Shahzad, declined to address the specifics of cases before his office, but he said it was crucial to remain vigilant about protecting rights, especially in terrorism cases where, he contended, “the threat that government agents will cross lines because they perceive it to be necessary is very real.”

Mr. Bharara’s office and the Justice Department declined to comment.

Anthony S. Barkow, a former terrorism prosecutor who runs a center on criminal law at New York University, said a legal challenge by Mr. Arbabsiar would be difficult because of the Miranda waivers he signed every day.

“Unless they can somehow successfully prove some level of coercion,” Mr. Barkow said, “they’re going to lose.”

    Courts Test Miranda Rights Limits in Terror Cases, NYT, 23.11.2011,
    http://www.nytimes.com/2011/11/24/us/cooperation-by-suspects-confined-in-terrorism-cases-is-questioned.html

Informer’s Role in Terror Case Is Said to Have Deterred F.B.I.

November 21, 2011
The New York Times
By WILLIAM K. RASHBAUM and JOSEPH GOLDSTEIN

The suspect had little money to speak of, was unable to pay his cellphone bill and scrounged for money to buy the drill bits that court papers said he required to make his pipe bombs. Initially, he had trouble drilling the small holes that needed to be made in the metal tubes.

The suspect, Jose Pimentel, according to several people briefed on the case, would seek help from a neighbor in Upper Manhattan as well as a confidential informer. That informer provided companionship and a staging area so Mr. Pimentel, a Muslim convert, could build three pipe bombs while the Intelligence Division of the New York Police Department built its case.

But it was the informer’s role, and that of his police handlers, that have now been cited as among the reasons the F.B.I., which had its own parallel investigation of Mr. Pimentel, did not pursue the case, which was announced on Sunday night in a news conference at City Hall. Terrorism cases are generally handled by federal authorities.

There was concern that the informer might have played too active a role in helping Mr. Pimentel, said several people who were briefed on the case, who all spoke on the condition of anonymity, either because of the tense relations between the Intelligence Division and the F.B.I. or because the case was continuing.

Some of those officials said the state’s prosecution of Mr. Pimentel was strong enough to most likely gain a conviction, emphasizing that Mr. Pimentel, who was nearing completion of the pipe bombs, had to be arrested.

But there are other issues that could complicate the case, in which Mr. Pimentel has been charged with criminal possession of a weapon in the first degree as a crime of terrorism, for which he could face 25 years to life in prison if convicted, and other charges, including conspiracy as a crime of terrorism.

Mr. Pimentel, 27, who lived with his uncle in the Hamilton Heights neighborhood after his mother threw him out recently, appears to be unstable, according to several of the people briefed on the case, three of whom said he had tried to circumcise himself.

And Mr. Pimentel, several of the people said, also smoked marijuana with the confidential informant, and some recordings in which he makes incriminating statements were made after the men had done so. His lawyer, Joseph Zablocki, did not return a call on Monday seeking comment.

Asked about the F.B.I.’s concerns, Paul J. Browne, the Police Department’s chief spokesman, said: “I’ve never heard that issue about the C.I. at all. I don’t think the person telling you that is familiar with the investigation.”

“It sounds like some people speaking anonymously who are not particularly familiar with the case are trying to undermine it,” he added, suggesting that the evidence in the case was considerable. “The fact remains that the words and actions of the suspect speak for themselves.”

Intelligence Division detectives have had Mr. Pimentel, a native of the Dominican Republic and naturalized American citizen, under surveillance for more than two years and made more than 400 hours of secret recordings, but his efforts to make the pipe bombs did not develop until mid-October, according to the criminal complaint against him.

The news conference at City Hall on Sunday night was the second time in six months that Mayor Michael R. Bloomberg; his police commissioner, Raymond W. Kelly; and Cyrus R. Vance, Jr., the Manhattan district attorney, announced the break-up of what Mr. Kelly cast as a major terrorism case that federal authorities had chosen not to pursue.

In the earlier case, in May, the police and the district attorney’s office, using undercover officers, had discovered a terrorist plot in which two men were set on bombing synagogues and churches. But a grand jury declined to bring charges of second-degree conspiracy as a crime of terrorism and as a hate crime, the top charges sought against the two men, Ahmed Ferhani and Mohamed Mamdouh.

In the current case, federal agents were first told of Mr. Pimentel about a year ago, or more, when the Police Department’s Intelligence Division asked the F.B.I.-N.Y.P.D. Joint Terrorism Task Force, staffed with police detectives and federal agents, if they wanted to pursue a case.

Then, in recent days and weeks, the Intelligence Division again approached federal agents when it became apparent that Mr. Pimentel had begun building a bomb. But the federal government again declined.

As late as Saturday, after Mr. Pimentel was arrested, the Intelligence Division invited the task force to interview Mr. Pimentel and view the partially constructed incendiary device, a person briefed on the investigation said.

In the task force, investigators were concerned that the case raised some entrapment questions, two people said. They added that some investigators wondered whether Mr. Pimentel had the even small amount of money or technical know-how necessary to produce a pipe bomb on his own, had he not received help from the informer.

A spokesman for the New York F.B.I. office, Timothy Flannelly, said that the task force was consulted regarding the New York police investigation into Mr. Pimentel, and that the decision was made to take the case to the Manhattan district attorney.

One federal law enforcement official said the tensions between competing agencies could sometimes obscure what he said was their primary goal. “There is an overarching important good picture to this which is the whole point of what we do — trying to keep people safe and protect them,” the official said.

There is a practical advantage to bringing the case in New York State court: state prosecutors said they were allowed to charge Mr. Pimentel with a conspiracy, even if he were acting with just the informant; federal law does not permit charging such a conspiracy.

The Police Department became aware of Mr. Pimentel in May 2009, when it was told by a police department in the Albany area that he was speaking about plans to go to Yemen for terrorism training and then to return to the United States, Mr. Browne said.

He said Mr. Pimentel’s talk did not “turn to action” until recently; Mr. Kelly, at the Sunday news conference, said Mr. Pimentel clearly “jacked up his speed after the elimination” of the Yemeni cleric Anwar al-Awlaki, who was killed by an American drone strike in September.

At the building where Mr. Pimentel lived on West 137th Street, his uncle said Sunday that the only recent change he noticed in his nephew was his conversion to Islam. On Monday, Mr. Pimentel’s mother, Carmen Sosa, apologized to the city — “I’m sorry about my son,” she said at one point as she faced reporters in the hallway of the apartment building. She also thanked the police.

But she said, in Spanish, “My son is not a terrorist.” She added, in English, “My son was like an normal boy, like a normal guy.”

“He likes the way of the Muslims,” she said, explaining that he had converted from Roman Catholicism. She also said: “In the beginning, he wasn’t fanatic. He was a regular Muslim.”

Reporters asked her if her son had ever talked about Saddam Hussein or Osama bin Laden or had ever said he wanted to harm American soldiers, as the criminal complaint said. She answered each question no.

Some in the neighborhood described Mr. Pimentel as a somewhat solitary figure who at times appeared to be lost in his own thoughts. At the Cachet barber shop on 138th Street and Broadway, people said he would sit on a bench there for hours without talking. “He’s like a zombie; he’s in limbo all the time,” Ralphie Sanchez, 59, said.

One reporter asked Mr. Pimentel’s mother if her son had deserved to be arrested. “Deserves is a strong word,” she said. “It’s difficult to say. Justice has to be done.”

 

Reporting was contributed by James Barron, Matt Flegenheimer,

Colin Moynihan and Scott Shane.

    Informer’s Role in Terror Case Is Said to Have Deterred F.B.I., NYT, 21.11.2011,
    http://www.nytimes.com/2011/11/22/nyregion/for-jose-pimentel-bomb-plot-suspect-an-online-trail.html

Suspect in New York Bomb Plot Left an Online Trail

November 21, 2011
The New York Times
By JAMES BARRON and JOSEPH GOLDSTEIN

The would-be terrorist accused of plotting to build and set off bombs in New York left a trail of articles and links online that the authorities had followed as they say he went from thought toward action, a step they say he had taken only in the last few weeks.

The suspect, Jose Pimentel, praised Osama bin Laden in posts on his blog, and the New York police commissioner, Raymond W. Kelly, said he had talked about changing his name to “Osama Hussein” to “celebrate” another of his heroes, Saddam Hussein. On the blog, Mr. Pimentel tried to justify the 9/11 attacks and said that Army bases, police stations and airports were necessarily at risk. “People have to understand that America and its allies are all legitimate targets in warfare,” he wrote in May.

He posted a photograph of Anwar al-Awlaki, the American-born cleric who became a strident voice for radical Islam and a top Qaeda propagandist. Mr. Kelly said Mr. Awlaki’s death in a drone strike in Yemen on Sept. 30 had refocused Mr. Pimentel’s own timetable for going on the attack.

Mr. Pimentel, a convert to Islam who was also known as Muhammad Yusuf, cited articles from Inspire, Al Qaeda’s online magazine. One article, with the headline, “Make a Bomb in the Kitchen of Your Mom,” was said to have been used by Mr. Pimentel in constructing his pipe bombs using parts the police say he bought at a Home Depot in the Bronx, among other places.

“My Muslim brother,” the article said, “we are conveying to you our military training.” It said readers could take the step-by-step instructions from the article “right into your kitchen to relieve you of the difficulty of traveling to us.”

The article said that the parts for a homemade bomb can be “easily disposed of if the enemy searches your home. Sniffing dogs are not trained to recognize them as bomb-making ingredients.”

“Buying these ingredients does not raise suspicion.”

But for Mr. Pimentel, 27, it did. The police had followed him to what a criminal complaint called “a 99-cent store in Manhattan” where he bought an alarm clock “similar to the clock pictured in the bomb-making article.” The police were on his trail a few days later when he went to theHome Depot in the Bronx to buy two other items mentioned in the Inspire article: metal pipe — a short, curved section routinely used in plumbing — and Christmas lights.

He did not know it, but he had been under police surveillance for more than two years. By the time he was arrested on Saturday, he had come close to completing at least three bombs, the authorities said. Mr. Kelly said Mr. Pimentel had planned to test his abilities by detonating mailboxes before going on a bombing campaign around the city.

“Pimentel talked about killing U.S. military personnel returning home from Iraq and Afghanistan, particularly Marines and Army personnel,” Mr. Kelly said. “He talked about bombing post offices in and around Washington Heights and police cars in New York City, as well as a police station in Bayonne, N.J.

“Once his bombing campaign began, Mr. Pimentel said the public would know that there were mujahedeen in the city to fight jihad here.”

Mayor Michael R. Bloomberg and Mr. Kelly said, however, that Mr. Pimentel was not part of a conspiracy, had no known contacts abroad and, in the mayor’s words, “appears to be a total lone wolf.”

A native of the Dominican Republic and a naturalized American citizen, Mr. Pimentel had spent much of his life in Manhattan, except for five years in Schenectady, N.Y., the authorities said. While upstate, his extremist remarks “made even some like-minded friends nervous,” Mr. Kelly said.

Mr. Pimentel spoke about traveling to Yemen “for training before returning to New York to become a martyr in the name of jihad,” Mr. Kelly said. While Mr. Kelly noted that Mr. Pimentel never went to Yemen, at one point Mr. Pimentel had e-mailed Mr. Awlaki in an attempt to open a line of communication. The cleric did not respond, the authorities said.

The intelligence division of the New York Police Department routinely asks smaller departments outside the city for help in identifying would-be terrorists, and it was through this network that the New York police learned of Mr. Pimentel around May 2009, Mr. Kelly said. The Police Department then began doing surveillance on him, the authorities said.

In January 2010, Mr. Pimentel followed his former wife back to New York, officials said, and at some point began maintaining the Web site trueislam1.com. There, alongside ads that said “Meet Smart Arab Women” and slogans like “I ♥ Islam,” he declared that “all the posts” on the home page “were written by my humble hands.”

He turned out thousands of words about Islam and bin Laden, “a general of an army who gives orders just like the general of any other army” but was “not your average general” and was not to be compared to other generals, “who are animals and have no morals.” Mr. Pimentel said Bin Laden bore no responsibility for 9/11. “These attacks were not planned or performed by Osama bin Laden,” he wrote, and “the WTC” — his abbreviation for the World Trade Center — “was a legitimate target in warfare” because the twin towers .

“A blow to these facilities would cripple the U.S. economy and therefore also help the defeat of the U.S. in the battlefield,” he wrote, “and 9/11 did just that.”

He praised “the brothers in Afghanistan who had been holding off the U.S. Army.” He wrote that the tide had turned in their favor in Afghanistan, where “the U.S. will soon be announcing their loss publicly,” he wrote, “and the world will again recognize that Allah is with the brothers in jihad.”

Mr. Pimentel appeared to have gone through a kind of evolution in the last 30 months. Mr. Kelly said he first came to the Police Department’s attention in May 2009 “when he talked about violence” and then “more intensely in recent weeks as he acted on it.” Along the way, Mr. Pimentel began making incriminating statements to a confidential informant who was working with the police, investigators said. Those conversations were recorded.

Mr. Pimentel kept the confidential informant up to date on his progress as he bought the parts for the bombs. The criminal complaint says the bomb-making sessions sometimes took place at the apartment of the informant.

The police videotaped Mr. Pimentel in the informant’s apartment on West 147th Street on Saturday as he drilled holes in three pipes, according to the criminal complaint. That was when the police, including members of the bomb squad, moved in and arrested him in the apartment.

“We weren’t going to wait around to figure out what he wanted do with his bombs,” a law enforcement official said. Mr. Pimentel lived with an uncle on West 137th Street, in Hamilton Heights. The uncle said on Sunday that the only recent change he noticed in his nephew was his conversion to Islam. On Monday, Mr. Pimentel’s mother, Carmen Sosa, apologized to the city — “I’m sorry about my son,” she said at one point as she faced reporters in the hallway of the apartment building. She also thanked the police.

But she said, in Spanish, “My son is not a terrorist.” She added, in English, “My son was like an normal boy, like a normal guy” who had never expressed animosity toward the United States.

“He likes the way of the Muslims,” she said, explaining that he had converted from Roman Catholicism. She also said, “In the beginning, he wasn’t fanatic. He was a regular Muslim.”

Reporters shouted questions, asking if her son had ever talked about Saddam Hussein or Bin Laden or had every said he wanted to harm Americans in the military, as the criminal complaint alleged. She answered each question no.

That was also her answer when she was asked if she had a suspicion about who the confidential informant might have been. “My son has his own friends,” she said. “I don’t know them.”

One reporter asked if Mr. Pimentel had deserved to be arrested.

“Deserves is a strong word,” she said. “It’s difficult to say. Justice has to be done.” Mr. Pimentel faces charges of criminal possession of a weapon in the first degree as a crime of terrorism as well as other charges, including conspiracy as a crime of terrorism.

At his arraignment in Manhattan Criminal Court on Sunday night, Mr. Pimentel, who wore a black T-shirt and baggy pants, was ordered held without bail. An assistant district attorney, Brian Fields, said Mr. Pimentel had been about an hour from completing the construction of his explosive devices when he was arrested.

The case is unusual in that it marks the second time this year that the Police Department and the Manhattan district attorney’s office have brought terrorism-related charges in state court, which in the past have been prosecuted almost exclusively in federal courts.

Mr. Kelly has, since the Sept. 11 attacks, frequently criticized the federal government’s counterterrorism capabilities, and he has built up his department’s counterterrorism program.

On Sunday, Mr. Kelly said that the Justice Department had been aware of the case against Mr. Pimentel. But he suggested that the Police Department had brought the case without the Justice Department because of how quickly the case came together at the end.

“We had to act quickly yesterday because he was in fact putting this bomb together, drilling a hole, and it would have been not appropriate for us to let him walk out the door with the bomb,” Mr. Kelly said.

A person who was briefed on the discussions between the Police Department and Justice Department, however, said that the Federal Bureau of Investigation had declined to become involved with the case against Mr. Pimentel because of issues the F.B.I. had with it. The person, who insisted on anonymity, declined to elaborate on what those issues were.

Adam Kaufmann, who heads the investigation division for the district attorney’s office, said, however, that “it was a better state case than federal” because while state law allows for Mr. Pimentel to be charged with a “a conspiracy of one person, the feds cannot charge a unilateral conspiracy.”

Matt Flegenheimer, Colin Moynihan, William K. Rashbaum and Scott Shane contributed reporting.

    Suspect in New York Bomb Plot Left an Online Trail, NYT, 21.11.2011,
    http://www.nytimes.com/2011/11/22/nyregion/for-jose-pimentel-bomb-plot-suspect-an-online-trail.html

City Bomb Plot Suspect Is Called Fan of Qaeda Cleric

November 20, 2011
The New York Times
By JOSEPH GOLDSTEIN and WILLIAM K. RASHBAUM

A Manhattan man who became fascinated by the American-born Muslim militant Anwar al-Awlaki was arrested on charges of plotting to build and detonate bombs in New York, city officials announced on Sunday night.

At a hastily called City Hall news conference, Police Commissioner Raymond W. Kelly, who appeared alongside Mayor Michael R. Bloomberg and the Manhattan district attorney, Cyrus R. Vance Jr., said the man, Jose Pimentel, 27, had begun in August to plot a bomb attack. But it was the death of Mr. Awlaki, who was killed in a drone strike in Yemen in September, that refocused his efforts, Mr. Kelly said.

Mr. Kelly said that Mr. Pimentel, a convert to Islam who was also known as Muhammad Yusuf, had been under police surveillance for more than two years and was arrested on Saturday after he had come close to completing at least three bombs.

Holes had been drilled into pipes, sulfur had been scraped off matches, nails were ready to be used as shrapnel, and wires were used to fashion an ignition device, according to a law enforcement official.

Mr. Pimentel planned to test his abilities by detonating mailboxes before embarking on a bombing campaign around New York City, Mr. Kelly said.

“Pimentel talked about killing U.S. military personnel returning home from Iraq and Afghanistan, particularly Marines and Army personnel,” Mr. Pimentel said. “He talked about bombing post offices in and around Washington Heights and police cars in New York City, as well as a police station in Bayonne, N.J.

“Once his bombing campaign began, Mr. Pimentel said the public would know that there were mujahideen in the city to fight jihad here.”

Mr. Bloomberg and Mr. Kelly said, however, that Mr. Pimentel was not part of a conspiracy, had no known contacts abroad and, in the mayor’s words, “appears to be a total lone wolf.”

A native of the Dominican Republic and a naturalized American citizen, Mr. Pimentel had spent much of his life in Manhattan, except for five years in Schenectady, N.Y., the authorities said. While upstate, his extremist remarks “made even some like-minded friends nervous,” Mr. Kelly said, noting that Mr. Pimentel considered changing his name to Osama Hussein “to celebrate his heroes.”

Mr. Pimentel spoke about traveling to “Yemen for training before returning to New York to become a martyr in the name of jihad,” Mr. Kelly said. While Mr. Kelly noted that Mr. Pimentel never ended up going to Yemen, at one point Mr. Pimentel had e-mailed Mr. Awlaki in an attempt to open a line of communication. The cleric did not respond, the authorities said.

The intelligence division of the New York Police Department routinely asks smaller departments outside the city for help in identifying would-be terrorists, and it was through this network that the New York police learned of Mr. Pimentel around May 2009, Mr. Kelly said. The Police Department then began doing surveillance on him, the authorities said.

In January 2010, Mr. Pimentel followed his former wife back to New York, officials said, and at some point began maintaining a Web site — www.trueislam1.com — that contained bomb-making discussions taken from Inspire, the English-language magazine published online by Al Qaeda in the Arabian Peninsula, the branch of the terrorist network in Yemen.

Along the way, Mr. Pimentel began making incriminating statements to an informant who was working with the police, investigators said, and those conversations were recorded.

The bomb-making began in earnest in October, with trips to a Home Depot in the Bronx and a 99-cent store in Manhattan during which Mr. Pimentel was under surveillance, according to a criminal complaint. There he purchased a clock, elbow piping and Christmas lights — all bomb-making parts, the complaint states. Mr. Pimentel kept the confidential informant up to date on his progress, and at times the bomb-making sessions took place at the apartment of the confidential informant, the complaint says.

On Saturday, the police videotaped him in the informant’s apartment as he was drilling holes in three pipes, according to the criminal complaint. At that moment, the police, including members of the bomb squad, moved in, arresting him in the apartment on West 147th Street, the authorities said.

“We weren’t going to wait around to figure out what he wanted do with his bombs,” a law enforcement official said. “He was in Harlem about an hour from actually having assembled the bombs,” but had all the “unassembled components ready to go.”

Mr. Pimentel lived with an uncle on West 137th Street, in Hamilton Heights. The uncle said in Spanish that the only recent change he noticed in his nephew was his conversion.

A next-door neighbor, Clara Blood, called the arrest “totally shocking and alarming, and it hits very close to home.”

Mr. Pimentel faces charges of criminal possession of a weapon in the first degree as a crime of terrorism as well as other charges, including conspiracy as a crime of terrorism.

At his arraignment in Manhattan Criminal Court on Sunday night, Mr. Pimentel, who wore a black T-shirt and baggy pants, was ordered held without bail. An assistant district attorney, Brian Fields, said Mr. Pimentel had been about an hour from completing the construction of his explosive devices when he was arrested.

The case is unusual in that it marks the second time this year that the Police Department and the Manhattan district attorney’s office have brought terrorism-related charges in state court, which in the past have been almost exclusively prosecuted in federal courts.

Mr. Kelly has, since the Sept. 11th attacks, frequently criticized the federal government’s counterterrorism capabilities, and he has built up his department’s counterterrorism program.

On Sunday, Mr. Kelly said that the Justice Department had been aware of the case against Mr. Pimentel. But he suggested that the Police Department had brought the case without the Justice Department because of how quickly the case came together at the end.

“We had to act quickly yesterday because he was in fact putting this bomb together, drilling a hole, and it would have been not appropriate for us to let him walk out the door with the bomb,” Mr. Kelly said.

A person who was briefed on the discussions between the Police Department and Justice Department, however, said that the Federal Bureau of Investigation had declined to become involved with the case against Mr. Pimentel because of issues the F.B.I. had with it. The person, who insisted on anonymity, declined to elaborate on what those issues were.

Adam Kaufmann, who heads the investigation division for the district attorney’s office, said, however, that “it was a better state case than federal” because while state law allows for Mr. Pimentel to be charged with a “a conspiracy of one person, the feds cannot charge a unilateral conspiracy.”

 

Matt Flegenheimer, Colin Moynihan and Scott Shane contributed reporting.

    City Bomb Plot Suspect Is Called Fan of Qaeda Cleric, NYT, 20.11.2011,
    http://www.nytimes.com/2011/11/21/nyregion/jose-pimentel-is-charged-in-new-york-city-bomb-plot.html

Reneging on Justice at Guantánamo

November 19, 2011
The New York Times

In 2008, the Supreme Court ruled that Guantánamo Bay prisoners who are not American citizens have the right of habeas corpus, allowing them to challenge the legality of their detention in federal court and seek release.

The power of the ruling, however, has been eviscerated by the Court of Appeals for the District of Columbia Circuit. The appellate court’s wrongheaded rulings and analyses, which have been followed by federal district judges, have reduced to zero the number of habeas petitions granted in the past year and a half.

The Supreme Court must reject this willful disregard of its decision in Boumediene v. Bush, and it can do so by reviewing the case of Adnan Farhan Abd Al Latif, a Yemeni citizen imprisoned at Guantánamo Bay since 2002.

This month, the appeals court declassified an opinion it issued in October that reversed a Federal District Court decision ordering Mr. Latif’s release. The appellate court improperly replaced the trial court’s factual findings with its own factual judgments. It also unfairly placed the burden on Mr. Latif to rebut the presumption that the government’s main evidence was accurate: the government should bear the burden of proving by a preponderance of the evidence that his detention is warranted.

It is undisputed that Mr. Latif was in a car accident in Yemen in 1994 and sustained head injuries. In 2001, he went to Pakistan to seek free medical treatment, and eventually traveled to Kabul to find a Yemeni man who had promised to help him. He was arrested near the border between Pakistan and Afghanistan and transferred to Guantánamo Bay, where he has been imprisoned without a trial. The government contends that Mr. Latif was recruited by an Al Qaeda operative and fought with the Taliban.

The federal trial judge found that the government’s evidence did not sufficiently support its contention, that incriminating evidence was not corroborated and that Mr. Latif had a plausible alternative explanation for his travels.

The appeals court reversed that decision, arguing that the government’s intelligence report on the Latif case should have been given “a presumption of regularity” and that unless there is “clear evidence to the contrary,” trial judges must presume that this kind of report is accurate. But as the strong dissent by Judge David Tatel explains, there is no reason to make such an assumption about the report, which was “produced in the fog of war, by a clandestine method that we know almost nothing about.”

In ruling on 15 habeas cases since mid-2010, the appellate court has made the standard of review toothless, and its views have affected lower court rulings. Since July 2010, district judges have denied 10 habeas petitions in Guantánamo cases and granted none, compared with 22 habeas petitions granted and 15 denied in the two years before that.

Judge Tatel writes that it is “hard to see what is left of the Supreme Court’s command” that habeas review in federal court be “meaningful.” The appeals court has gone off on the wrong track. The justices need to reaffirm the right of prisoners in Guantánamo to seek justice in federal court and to explain firmly and clearly what that entails.

    Reneging on Justice at Guantánamo, NYT, 19.11.2011,
    http://www.nytimes.com/2011/11/20/opinion/sunday/reneging-on-justice-at-guantanamo.html

Torture and Exceptionalism

November 14, 2011
The New York Times
By FRANK BRUNI

If we truly believe ourselves to be exceptional, a model for all the world and an example for all of history, then why would we practice torture?

That’s what waterboarding is, and that’s why President Obama banned it — rightly. When you pour water onto someone until he gasps for air and feels as if he’s drowning, you’re not merely enhancing your interrogation. You’re putting him through a hell as physical as it is psychological. You’re torturing him, by any sane definition of the term.

And yet waterboarding was back up for discussion and even back in a kind of perverse vogue on Saturday night, at the same Republican presidential debate where Mitt Romney, pivoting to a favorite melody, sang the song of American greatness and singularity — American exceptionalism. That juxtaposition was odd in the extreme.

I came away from the debate, which was devoted to foreign policy, with all sorts of qualms and questions, including why Newt Gingrich has submitted to an electoral process he feels such palpable condescension toward.

But mostly I came away thinking that a great deal of what the candidates propose flies squarely in the face of the particular stripe of national pride they simultaneously trumpet.

This is a crowd that’s big on exceptionalism, and not according to its onetime definition: as a reference to the peculiar and advantageous circumstances of our country’s genesis. They’re asserting that we have a unique global standing, our eminence essential and our values worthy of export.

“This century must be an American century,” Romney said, and he digressed widely from the specific topic at hand to say it.

“We have a president right now who thinks America is just another nation,” he added, not representing Obama’s past remarks entirely fairly. “America is an exceptional nation.”

Romney didn’t get a chance to weigh in on waterboarding, so we don’t know whether he actually favors its restored use, as Michele Bachmann and Herman Cain said they did, and as Rick Perry seemed to signal as well.

But we know Romney doesn’t consider it torture, because one of his senior aides, Eric Fehrnstrom, sent out a Twitter message after the debate saying flatly that it isn’t, and a campaign spokeswoman on Monday confirmed that that was indeed Romney’s own view. The spokeswoman added: “At the same time, he’s not going to specify the enhanced interrogation techniques he would use against terrorists.”

From the debate stage in South Carolina came not only calls for waterboarding — which Jon Huntsman and Ron Paul, to their credit, rejected — but also the churlish suggestion that that the United States withhold even the first dollar of foreign aid to a country until it proved itself wholly deserving. This came courtesy of Perry and Gingrich.

From Rick Santorum there were warm thoughts of clandestine missions to kill Iranian scientists. Immigration wasn’t discussed this time around, but when it has been in recent months, Cain has mentioned the digging of a moat along the Mexican border — filled with alligators, no less! — and Bachmann has been all about the ludicrously impractical construction of a fence, which Cain at one point suggested electrifying as an extra deterrent to anyone with thoughts of scaling it. Then he said he was joking. A belly laugh rose up from all seven continents.

Of course the candidates talk tough in large part as a way to accuse Obama of being soft. It’s typical political posturing, inevitable political pandering.

But their oft-lofted notion that he has raised a white flag in the war on terror is absurd. While his presidency has had considerable flaws and disappointments, that’s not one of them.

Yes, he ended waterboarding — which is also what John McCain, who has real moral authority on the issue, said he would do. (On Monday McCain said he was “very disappointed” by the discussion at the debate.)

But Obama has dispatched more drones than Dick Cheney likely ever fantasized about, including the one that killed Anwar al-Awlaki, an American citizen never given any trial. He ordered the mission that ended the life of Osama bin Laden. These aren’t the actions of a commander in chief apologetic about the use of force. And they’re proof that you can be plenty fearsome without whipping out the instruments of torture.

We face difficult decisions and a tricky balancing act when it comes to keeping this country safe, whether from terrorists abroad or criminals coming across the southern border. And there’s no doubt we can’t be as high-minded as we’d sometimes like. I for one am not losing any sleep over Awlaki.

But we have to be careful about how far we go — how merciless our strategies, how self-serving our positions — because the rightful burden of the leadership we insist on is behavior that’s better than everybody else’s, not the same or worse. Exceptionalism doesn’t mean picking and choosing when to be big and when to be small.

    Torture and Exceptionalism, NYT, 14.11.2011,
    http://www.nytimes.com/2011/11/15/opinion/bruni-torture-and-exceptionalism.html

As 9/11 Remains Are Identified, Grief Is Renewed

November 12, 2011
The New York Times
By JO CRAVEN McGINTY

On Nov. 19, 2001, Susan Ainbinder Hutchins received a call saying that her son, Kevin Colbert, who worked at an investment bank on the 89th floor of 2 World Trade Center, had been identified among the ground zero remains.

“I’m thinking, they found my son,” she said, “but the funeral director had a real hard time making eye contact with me. He said, ‘Susan, I don’t know what they told you on the telephone, but we only have his thighbone from his right leg.’ ”

To spare his friends and relatives the shock, Ms. Ainbinder Hutchins executed a plan to make everyone believe he was buried whole. But the nightmare was not over. “The calls kept coming and coming and coming,” she said. For several years, at roughly two-month intervals, she was informed that another piece of her son had been identified.

“Nobody gets it,” she said. “They don’t understand why I’m stuck in such an awful place.”

The Sept. 11 memorial has been open two months, but another type of remembrance is being performed each day at the office of New York City’s medical examiner, where scientists have been laboring to link nearly 22,000 human remains to the 2,747 people killed at the pulverized World Trade Center.

The byproduct of that sobering math has been a series of unpredictable and heart-rending phone calls over the last 10 years to notify family members that yet another fragment of their child, spouse or parent has been identified, followed by the wrenching question of what to do with remains that, in some cases, are no more than particles of bone.

“There are certain things people don’t talk about,” said Sally Regenhard, whose son Christian, a firefighter, died in the attack. “People won’t talk about the jumpers. They don’t talk about the money. And they don’t talk about whether they are still getting pieces.”

Yet remains are identified almost every day, and families will continue to receive calls for as long as the medical examiner’s office, aided by advancing technology, makes identifications.

The medical examiner, Dr. Charles S. Hirsch, “made a promise to the families that as long as the technology existed, he would try to identify all of the remains of all of the people who died,” said Ellen Borakove, a spokeswoman for the medical examiner.

So far, about 13,000 remains have been identified. In one case, more than 300 pieces have been linked to a single victim, although typically the number is much lower.

Some families retrieve new remains right away, conducting small ceremonies and reopening graves to bury them. Some wait for years, and are still waiting, in order to collect them all at once. Families of about 150 victims have asked not to be notified at all.

In 2002, about eight months after Rosemary Cain held a burial for her son George, a firefighter, she received her first call from the medical examiner’s office saying its scientists had identified another bone fragment.

“It threw me into such a tailspin,” she said. “To get him back in pieces — it’s very hard to digest. Then I decided to take a deep breath. It made me realize this could be an ongoing process.”

Mrs. Cain has received one other notification but has chosen to leave her son’s additional remains with the medical examiner until testing is complete. She is thinking of having those remains buried with her when she dies.

Even today, 1,121 victims have never been linked to any remains, and about 9,000 remains have yet to be connected to a victim. About 3,000 are samples of muscle, skin and hair that the scientists are preserving for future tests because their DNA cannot be extracted with current technology. The other 6,000 are bone fragments being continuously tested by five forensic scientists working under Mark Desire, the assistant director of forensic biology for the medical examiner. Some have been tested five or six times previously, and while the procedure has not changed, the tools for conducting the tests have improved.

When a DNA profile, which looks like a string of numbers, is obtained, it is compared with a database of matching material gathered from toothbrushes, hairbrushes and other samples provided by family members soon after Sept. 11. The team also has 27 complete DNA profiles of victims they cannot identify by name because they do not have matching material.

When a person is linked to a set of remains for the first time — the last such identification was in August — the family is visited by the Police Department, following standard procedure for victim notification. But when remains are linked to a previously identified victim, the medical examiner’s office makes the call.

The repeat notifications take an emotional toll on people like Ms. Ainbinder Hutchins.

When she learned in 2001 that only her son’s thighbone had been recovered, she made a snap decision. “I said I want to pick out a casket,” she said.

She also bought a large trunk from Pier One Imports and asked friends and relatives to fill it with mementos of Mr. Colbert, her son. An artist friend contributed a sculpture of him playing volleyball. His high school football team offered a helmet they had all signed. Ms. Ainbinder Hutchins tucked in her son’s favorite cereal and his New York Mets blanket.

Eventually, the trunk was overflowing, and, in secret, Ms. Ainbinder Hutchins directed the funeral home to place all of the items inside Mr. Colbert’s coffin. The weight approximated the 275 pounds on his 6-foot-3 frame, and Ms. Ainbinder Hutchins allowed everyone, including her three younger sons, to assume that Mr. Colbert had been found whole.

“I never told a soul what I did,” she said. “I didn’t want them to feel the pain I was feeling.”

Then the calls began. “I got sick to my stomach,” she said.

She asked the medical examiner’s office to keep the remains, but in 2006 decided to retrieve them and reveal the truth to her family. She keeps the remains in an urn on a table by her bed and has not received any more calls.

When Sean Tallon, a firefighter, was identified, his family never considered the possibility that there might be additional calls.

“We were so relieved to have part of him to put in the coffin that it didn’t matter how much it was at that stage,” Mr. Tallon’s sister, Rosaleen Tallon, said. But for three years, the family received calls from the medical examiner’s office as more of his remains were identified.

“I had a cry” after each call, Mr. Tallon’s mother, Eileen Tallon, said. The family eventually conducted a second funeral, opening the grave and placing the new remains in a small wooden box just above his coffin.

“That is my son, part of my son,” she said. “I don’t care if they notify me as long as I live.”

    As 9/11 Remains Are Identified, Grief Is Renewed, NYT, 12.11.2011,
    http://www.nytimes.com/2011/11/13/nyregion/as-remains-from-9-11-are-identified-no-end-to-grieving.html

The Thing Itself

October 13, 2011
The New York Times
By DAVID BROOKS

Ground zero in Lower Manhattan is a mass grave. So when it came time to rebuild the World Trade Center, the whole enterprise was enshrouded with passion and symbolism. The developers wanted a project that would proudly assert the American spirit. They wanted to send a message that the terrorist damage would not last. They wanted it to commemorate the tragedy and celebrate the revival. Everything, therefore, had to be big: the country’s tallest building, the most expensive commuter rail station, the costliest memorial.

Born in grief and passion, the whole enterprise was soon plagued by furious discord. Personalities clashed. Practicalities were ignored. Building budgets didn’t mesh with the deadlines. There were arguments about the memorial and the proper definition of the word “patriot.” There was a lot of planning but not much execution. Symbolism eclipsed reality.

During his brief tenure, Gov. David Paterson hired Chris Ward, formerly Mayor Michael Bloomberg’s environmental protection commissioner, to take over the Port Authority and rescue the shambolic ground zero project. Ward quickly understood his mission: to take a sacred cause and turn it into a building project. That is to say, to demystify it, to see it as it really is and not through the gauze of everybody’s emotions surrounding 9/11.

Ward set prosaic priorities — what would be built first, which parts of the project could wait. He cut costs by doing things like putting columns in the design of the transportation hall. He changed the name of Freedom Tower to One World Trade Center. He divided the construction deals into manageable chunks.

Ward gave me a tour of the site this week, and what I liked best was that it wasn’t all that moving. It was mostly about infrastructure, not pathos. Ward spoke as much about the internal guts of the project as the outer meaning. He praised the memorial fountains, which occupy the land of the original towers, for their dignity and restraint. They don’t tell future generations what to think.

It’s still an enormous project, but Ward distinguishes between “myopic monumentalism” and monumental projects done right. Myopic projects are designed in a rush. They are simple and brutal and single-purposed. They lack the cross tensions and quiet paradoxes that accrete on a project when it evolves patiently and over time. Robert Moses’s dream of building an expressway through the heart of Manhattan was myopic monumentalism. Frederick Law Olmsted’s Central Park, with its complex blend of neighborhoods, was not.

Ward (who is inexplicably being replaced by Gov. Andrew Cuomo) rescued the ground zero project by disenchanting it, by seeing it as it is, not through shrouds of symbols — by attending closely to all the practical complexity. American politics in general could use that sort of disenchantment.

Many issues that were once concrete and practical are distorted because they have become symbolic and spiritual. Tax policy isn’t just about how to raise revenue anymore. Liberals see it as a way to punish the greedy and redress the iniquities of capitalism. Conservatives see tax increases as an assault on the enterprising class perpetrated by arrogant central planners. A tax rate could be seen as just a number signifying an expense, but now it’s a marker in a culture war.

Gun policy isn’t about what specific weaponry should be in private hands. It’s seen as an assault on or defense of the whole rural lifestyle, so to compromise on any front is to court dishonor.

President Obama’s Green Tech initiative has become a policy disaster — not only at Solyndra but at one program after another — because its champions ignored basic practical considerations. They were befogged by their own visions of purity and virtue.

Maybe it’s part of living in a postmaterialist economy, but nearly every practical question becomes a values question. You get politicians and commentators whose views are entirely predictable because they don’t care about the specifics of any particular issue. They just care about the status war against their social enemies and the way each issue functions as a symbol in that great fight.

It would be nice if there were more leaders like Ward inclined to disenchant problems and stare directly at specific contexts. Sometimes circumstances compel you to raise taxes, sometimes circumstances allow you to cut them. Sometimes government can promote innovation; in most cases it can’t.

Walker Percy once wrote, “God writes straight with crooked lines.” Translated into policy terms, that means it takes a lot of little zigs and zags over the terrain to get where you want to go. Mayors, governors and local officials do this all the time as they respond practically to circumstances. At the national level anybody who tries to zig and zag gets regarded as weak and traitorous by the economic values groups. There are rewards for those who fight over symbols, few for those who see the thing itself.

    The Thing Itself, NYT, 13.10.2011,
    http://www.nytimes.com/2011/10/14/opinion/the-thing-itself.html

Tehran’s Foes, Unfairly Maligned

October 12, 2011
The New York Times
By LOUIS J. FREEH

Washington

AS the United States tries to halt Iran’s nuclear program and prepares to withdraw troops from Iraq, American voters should ask why the Obama administration has bent to the will of Tehran’s mullahs and their Iraqi allies on a key issue: the fate of 3,400 unarmed members of the exiled Iranian opposition group, Mujahedeen Khalq, who are living in Camp Ashraf, north of Baghdad.

The government of Prime Minister Nuri Kamal al-Maliki, a Shiite Muslim, has brazenly murdered members of the Mujahedeen Khalq. Mr. Maliki justifies his attacks by noting that the group is on the United States’ official list of foreign terrorist organizations.

In April, Iraqi forces entered Camp Ashraf and fatally shot or ran over 34 residents and wounded hundreds more. Mr. Maliki has now given the Mujahedeen Khalq until Dec. 31 to close the camp and disperse its residents throughout Iraq.

Without forceful American and United Nations intervention to protect the camp’s residents and a decision by the State Department to remove Mujahedeen Khalq’s official designation as a terrorist group, an even larger attack on the camp or a massacre of its residents elsewhere in Iraq is likely.

This situation is the direct result of the State Department’s misconceived attempt to cripple the Mujahedeen Khalq by labeling it a terrorist organization, beginning in 1997. At the time, I was director of the Federal Bureau of Investigation. I concluded that this was part of a fruitless political ploy to encourage a dialogue with Tehran. There was no credible evidence then, nor has there been since, that the group poses any threat to the United States.

Tragically, the State Department’s unjustified terrorist label makes the Mujahedeen Khalq’s enemies in Tehran and Baghdad feel as if they have a license to kill and to trample on the written guarantees of protection given to the Ashraf residents by the United States. And Tehran’s kangaroo courts also delight in the terrorist designation as an excuse to arrest, torture and murder anyone who threatens the mullahs’ regime.

For better or worse, the State Department often makes politically motivated designations, which is why the Irish Republican Army was never put on the list (despite the F.B.I.’s recommendation). Similarly, Moktada al-Sadr’s Mahdi Army in Iraq and the Haqqani terrorist network in Pakistan — both of which have murdered many Americans — have successfully avoided being listed.

During my tenure as F.B.I. director, I refused to allocate bureau resources to investigating the Mujahedeen Khalq, because I concluded, based on the evidence, that the designation was unfounded and that the group posed no threat to American security.

I did, however, object to the State Department’s politically motivated insistence that the F.B.I. stop fingerprinting Iranian wrestlers, and intelligence operatives posing as athletes, when the wrestlers were first invited to the United States in a good-will gesture. And the F.B.I. did try, unsuccessfully, to focus the Clinton administration on the threat posed by the Iranian Revolutionary Guard Corps, which exported terrorism and committed or orchestrated acts of war against America, including the 1996 Khobar Towers attack in Saudi Arabia, which killed 19 American airmen. We learned from prosecutors on Tuesday that a unit of the corps plotted to murder the Saudi ambassador in Washington.

Some critics call the Mujahedeen Khalq a dangerous cult. But since leaving office, I have carefully reviewed the facts and stand by the conclusion that the Mujahedeen Khalq is not a terrorist organization and should be removed from the State Department’s list immediately. Many of the most knowledgeable and respected terrorism experts in the world have come to the same conclusion. (Though I have on some occasions received speaker’s fees or travel expenses from sympathizers of the Mujahedeen Khalq, my objective analysis as a career law enforcement officer is the only basis for my conclusions.)

Britain and the European Union have already acted on the evidence, removing the Mujahedeen Khalq from their sanctions lists in 2008 and 2009, respectively. The British court reviewing the Mujahedeen Khalq dossier went so far as to call the terrorist designation “perverse.”

The Mujahedeen Khalq is now led by a charismatic and articulate woman, Maryam Rajavi, who enjoys significant support in European governments. In 2001, the Mujahedeen Khalq renounced violence and ceased military action against the Iranian regime. And in 2003, the group voluntarily handed over its weapons to American forces in Iraq and has since provided the United States with valuable intelligence regarding Iran’s nuclear weapons program. By the State Department’s own guidelines, Mujahedeen Khalq should be delisted.

Yet Secretary of State Hillary Rodham Clinton and the White House have balked at delisting the group and protecting its members at Camp Ashraf, despite bipartisan calls for action.

Incredibly, as our duty to protect the camp’s residents reaches a critical stage, the State Department offers only silence and delay. The secretary is still “reviewing” the designation nearly 15 months after the United States Court of Appeals in Washington ruled that the department had broken the law by failing to accord the Mujahedeen Khalq due process when listing it as a terrorist group. Mrs. Clinton has not complied with the court’s order to indicate “which sources she regards as sufficiently credible” to justify this life-threatening designation. The reason is clear: there is no evidence.

 

Louis J. Freeh was director of the F.B.I. from 1993 to 2001.

    Tehran’s Foes, Unfairly Maligned, NYT, 12.10.2011,
    http://www.nytimes.com/2011/10/13/opinion/tehrans-foes-unfairly-maligned.html

Developments Rekindle Debate

Over Best Approach for Terrorism Suspects

October 13, 2011
The New York Times
By CHARLIE SAVAGE

WASHINGTON — The guilty plea by the so-called Underwear Bomber and charges in an assassination plot linked to Iran have added new fuel this week to the simmering debate over whether terrorism cases are better handled in the criminal justice system or by the military.

Both cases were handled in the traditional court system, and investigators warned the defendants of their Miranda rights to remain silent and have a lawyer.

President Obama’s top counterterrorism adviser, John O. Brennan, said Thursday in an interview that the developments showed why the administration strongly believes that terrorism suspects arrested inside the United States should be handled by the traditional system.

“Both of these cases demonstrate that Miranda was not at all an impediment” to winning a conviction and eliciting intelligence during an initial interrogation, respectively, Mr. Brennan said. “The American people should feel reassured that we are handling these cases very effectively as well as consistent with our laws and our values.”

Mr. Brennan’s comments came as the Senate considers legislation to require military detention for such cases, part of a bipartisan deal approved by the Senate Armed Services Committee. The administration strongly opposes the measure on the ground that it will tie the hands of counterterrorism professionals, and Mr. Brennan said negotiations over it with lawmakers were continuing.

Conservatives questioned whether either of the developments truly undercuts their arguments in support of the military system.

The first development concerned the alleged plot by Iran to kill the Saudi ambassador to the United States. American officials disclosed that “several hours after his arrest” they had advised the Iranian-American defendant, Mansour J. Arbabsiar, of his Miranda rights. He waived those rights, as well as a right to be quickly presented to a judge, and spent nearly two weeks providing “extremely valuable intelligence,” officials said.

Giving Miranda warnings to terrorism suspects led to political furor several times in 2010. By contrast, there was little or no criticism of the decision to give the warning to Mr. Arbabsiar.

Republican Congressional aides, however, noted that he had been unwittingly dealing with an informant and was under surveillance for months, so it was less likely that he might have any conspirators who were unknown to the government . They also said that because Mr. Arbabsiar is a United States citizen, it was less controversial to read him a Miranda warning.

“The concern is that the Obama administration has sought to treat foreign terrorists the same way that they would treat U.S. citizens who have committed an act of terrorism by extending additional rights to foreign terrorists, including Miranda rights,” Representative Lamar Smith said in a statement. Mr. Smith, a Texas Republican who is chairman of the House Judiciary Committee, supports sending noncitizen terrorism suspects to the facility at Guantánamo Bay, Cuba.

The use of the criminal justice system in terrorism cases was routine during the Bush administration. But its use became controversial in December 2009, after Umar Farouk Abdulmutallab tried to blow up a plane with a bomb in his underwear. When the plane landed in Detroit, he confessed extensively for about an hour, and then went into surgery.

After Mr. Abdulmutallab emerged from surgery, officials say, he stopped talking, so they decided to read him his Miranda rights. Mr. Abdulmutallab then did not start cooperating again until several weeks later, which some critics asserted was because of the warning. Among the topics of his interrogation was what role Anwar al-Awlaki, an American-born radical Muslim cleric, may have played in recruiting him for the plot; Mr. Awlaki was killed last month in a drone strike.

The furor was rekindled in May 2010, after a naturalized American citizen, Faisal Shahzad, was arrested in a failed attempt to blow up his car in Times Square. Interrogators questioned him for several hours before reading him his rights. He waived them and continued cooperating, and eventually pleaded guilty. Still, several Republicans again criticized the decision to give him a warning.

In November 2010, the issue flared again after a jury convicted Ahmed Khalfan Ghailani, a former Guantánamo detainee who had been brought to the United States, on just one of 285 charges related to his role in the 1998 bombing of embassies in Africa. Republicans said the case showed the civilian system could not be trusted, although Mr. Ghailani was later sentenced to life in prison.

In May 2011, two Iraqi immigrants were arrested in Kentucky and charged with terrorism offenses in Iraq. Both waived their Miranda rights and talked to investigators for several days. That trial, which is pending, has been criticized by the Senate minority leader, Mitch McConnell, Republican of Kentucky, who contends that it could make his state a terrorist target and that they should be sent to Guantánamo.

Attorney General Eric H. Holder Jr. issued a guidance memorandum last fall to law enforcement agents in the field encouraging them to use an expansive notion of a “national security safety exception” for asking questions of terrorism suspects about any immediate threats to public safety before informing them of their Miranda rights.

Last month, the judge in Mr. Abdulmutallab’s case accepted that notion, refusing to suppress statements he made in the first hour after his arrest. Mr. Brennan called that a “very powerful ruling” that “clearly validated the national security exception.”

On Wednesday, Mr. Holder, too, portrayed the outcome of Mr. Abdulmutallab’s trial as a vindication for the view that using the criminal justice system in terrorism cases works, saying that “we will let results, not rhetoric, guide our actions.”

That drew criticism from Andrew C. McCarthy, a former federal prosecutor who is now a conservative commentator. In an essay he wrote on the National Review Web site, he said there was never any question that it would be easy to convict Mr. Abdulmutallab. Rather, he said, the issue was whether interrogators got less intelligence from him than if he had been put in military detention.

“The guilty plea and the virtual certainty of a life sentence for this atrocious terrorist is an excellent result — one that Mr. Holder is right to celebrate, that we should all celebrate,” Mr. McCarthy wrote. “But it is not a victory, much less a dispositive victory, in the political debate over how we should be processing war criminals.”

But Mr. Brennan argued that such criticism relied on the “false premise and assumptions” that Mr. Abdulmutallab would have talked more had he not been read his Miranda rights and had been put instead in military custody.

    Developments Rekindle Debate Over Best Approach for Terrorism Suspects, NYT, 13.10.2011,
    http://www.nytimes.com/2011/10/14/us/debate-is-renewed-over-approach-for-terrorism-suspects.html

When the U.S. Kills an American Citizen

October 12, 2011
The New York Times

To the Editor:

Re “Justifying the Killing of an American” (editorial, Oct. 12):

Without the rule of law, we are left with might makes right. In this decade, we are the mightiest and may deploy drones or Navy Seals to kill those deemed guilty without a trial and proven evidence. In some future decade, another country may deploy such measures, legitimized by such precedent, against targets on our soil.

Perhaps it will be Iran settling old scores concerning our support of a ruthless shah. Perhaps Iraqis will want to punish those who authorized the unjustifiable invasion of their country. Is this the world order we want?

We tried high-level Nazis after World War II. Cambodia tried the criminals who slaughtered millions under Pol Pot. We could and should have done the same for Osama bin Laden and Anwar al-Awlaki, the American-born radical Muslim cleric hiding in Yemen. We have diminished and endangered our nation with these summary executions, however monstrous these men.

NEIL MULLIN
Montclair, N.J., Oct. 12, 2011

 

To the Editor:

As a veteran, I think that it’s a clear-cut case. Anwar al-Awlaki may have been a United States citizen, but the moment he became actively involved in a military campaign against the United States, he became an enemy our military was obligated to fight and kill.

In war, one never asks whom one faces at the other end of the gun. It is kill or be killed.

GEORGE WOLF
New York, Oct. 12, 2011

 

To the Editor:

Anwar al-Awlaki was an American citizen, with constitutional guarantees of due process of law. Indeed, if our courts were empowered to strip any of us of citizenship, all our “rights” would be merely boons granted at the courts’ pleasure. Unless he walked into a United States courthouse or embassy to renounce his citizenship, American law permits only one scenario in which he would not be entitled to a full trial (whether in person or in absentia).

Our law provides that we can infer that one has renounced American citizenship by “serving in the armed forces of a foreign state if such armed forces are engaged in hostilities against the United States.”

Name that state and show that Mr. Awlaki served in armed forces, and you have a case for denying him a trial. Until then, he’s a murder victim.

BARRY HASKELL LEVINE
Lafayette, Calif., Oct. 12, 2011

To the Editor:

There is no useful distinction to be made between the murder of an American citizen and that of a noncitizen. It’s murder either way. Shame on you all.

TOM KARSAY
Toronto, Oct. 12, 2011

 

To the Editor:

The targeted killing of Anwar al-Awlaki is controversial because he was American-born, and therefore a citizen (“Secret U.S. Memo Made Legal Case to Kill a Citizen,” front page, Oct. 9).

While Mr. Awlaki was undoubtedly a citizen de jure, it’s fair to state that one who declares and executes acts of war on his native country has de facto relinquished his rights as a citizen of that country.

Kudos to those who carried out this mission and dealt with an enemy of the state appropriately.

MICHAEL LUSTIG
New York, Oct. 9, 2011

 

To the Editor:

Waging a military war against criminals is a novel concept in modern societies. More than just a memo arguing that it is legal to kill an American citizen siding with the enemy in times of war, we need to clarify the legal definition of war, its battlefields and its combatants.

If Anwar al-Awlaki had been killed by a police raid in an attempt to apprehend him, we would not be struggling with any moral qualms.

MANUEL ORLANDO GARCIA
Staten Island, Oct. 9, 2011

    When the U.S. Kills an American Citizen, NYT, 12.10.2011,
    http://www.nytimes.com/2011/10/13/opinion/when-the-us-kills-an-american-citizen.html

Unlikely Turn for a Suspect in a Terror Plot

October 12, 2011
The New York Times
By ROBERT F. WORTH and LAURA TILLMAN

WASHINGTON — His nickname was Scarface, the legacy of a brutal knife attack on a dark Houston street three decades ago that left his left cheek permanently marred. Friends and neighbors in Texas said that he could be gruff and intimidating, and that he often stood outside his house at night smoking and talking on his cellphone in a language they did not understand.

But Mansour J. Arbabsiar, 56, the man at the center of an alleged Iranian plot to kill a Saudi diplomat in Washington, seems to have been more a stumbling opportunist than a calculating killer. Over the 30-odd years he lived in Texas, he left a string of failed businesses and angry creditors in his wake, and an embittered ex-wife who sought a protective order against him. He was perennially disheveled, friends and acquaintances said, and hopelessly disorganized.

Mr. Arbabsiar, now in custody in New York, stands accused by federal prosecutors of running a global terrorist plot that stretched from Mexico to Tehran, and that was directed by the Quds Force of Iran’s Revolutionary Guards. Many of his old friends and associates in Texas seemed stunned at the news, not merely because he was not a zealot, but because he seemed too incompetent to pull it off.

“His socks would not match,” said Tom Hosseini, a former college roommate and friend. “He was always losing his keys and his cellphone. He was not capable of carrying out this plan.”

On Wednesday, American officials, who say the plot was endorsed by top Iranian authorities, were exploring why the sophisticated Quds Force might have chosen to rely on so amateurish an agent as Mr. Arbabsiar.

Sometime in the past two years, Mr. Arbabsiar, whose friends called him Jack, began spending time in his native Iran, and investigators say he formed a relationship with members of the Quds Force. But Mr. Hosseini, who last saw his old roommate about two months ago, said Mr. Arbabsiar appeared to be chasing money, not political intrigue.

“He said he’d been in Iran and was making good money,” Mr. Hosseini said.

The federal complaint against Mr. Arbabsiar did not say how much money he stood to be paid by the Iranians, who are accused of asking him to pay $1.5 million to a Mexican drug cartel to assassinate the Saudi ambassador to the United States. That money was involved was not a surprise to Mr. Arbabsiar’s old friends, who said he had no interest in religion or politics, and smoked marijuana and drank alcohol freely.

“He was no radical,” said Mitchell Hamauei, who owns a deli in Corpus Christi, Tex., where Mr. Arbabsiar ran a used-car lot for years. “He was a businessman, and people with money always want to make more money.”

Some of Mr. Arbabsiar’s former friends and acquaintances had a few kind words for him, saying that he was friendly and good-humored, and that his flaws were more a matter of carelessness than malevolence.

Others were less charitable, saying he was hopelessly unreliable. Sam Ragsdale, who runs his own wholesale car business in Corpus Christi, had one word for Mr. Arbabsiar: “Worthless.”

Mr. Arbabsiar’s arrest sent shock waves across the Middle East — where the accusations seemed certain to worsen Iran’s relations with both the United States and Saudi Arabia — and in the narrower confines of Central Texas, home to a substantial population of Iranian immigrants.

Television crews were parked outside Mr. Arbabsiar’s house in the Austin suburb of Round Rock on Wednesday. No one answered the door of his home. But neighbors said Mr. Arbabsiar, who lived there with his second wife and her children, was something of a pariah in the area, where he rarely greeted or spoke to anyone.

“Very creepy,” said Bree Tiumalu, who lives two doors down from Mr. Arbabsiar. “We thought of it as ‘the scary house.’ ” There were always lots of people coming and going from the house, mostly in their 20s, she said, but they did not socialize with people on the street. That led some in the community to suspect that drug deals were going on.

Mr. Arbabsiar emigrated to the United States as a young man, later briefly studying mechanical engineering at Texas A&I University in Kingsville (now Texas A&M University-Kingsville). While in college, in 1981, a group of men — apparently angry at Mr. Arbabsiar for flirting with their girlfriends — ambushed him in Houston one night, said Mr. Hosseini, who was with him. Mr. Hosseini said he ran away, but Mr. Arbabsiar was too slow, and the attackers stabbed him repeatedly.

Soon after, he gained American citizenship after marrying his first wife. The couple divorced in 1987; court records show that his ex-wife sought a protective order against him before letting it drop, an article in The Houston Chronicle said.

He later remarried and tried his hand at a number of businesses, selling horses, ice cream, used cars and gyro sandwiches, friends said. All of them appear to have flopped, and federal and state records show a trail of liens, business-related lawsuits and angry creditors. He was arrested in 2001 and indicted for theft in connection with the sale of a store, said the lawyer who represented him at the time, Fred Jimenez. The charges were later dismissed for lack of evidence.

For all his flaws, Mr. Arbabsiar showed flashes of decency and kindness, and sometimes lent money to friends in need, old business associates said. Dan Keetch, a used-car salesman in Corpus Christi, said Mr. Arbabsiar seemed deeply upset by the 2001 terrorist attacks, and asked him not to judge all Middle Easterners in a harsh light.

“He made a big deal about it,” Mr. Keetch recalled, “saying, ‘My friend, I’m not like that, the majority of my people are not like that.’ ”

 

Robert F. Worth reported from Washington, and Laura Tillman from Corpus Christi and Brownsville, Tex. Kelley Shannon contributed reporting from Round Rock, Tex., and Barclay Walsh from Washington.

    Unlikely Turn for a Suspect in a Terror Plot, NYT, 12.10.2011,
    http://www.nytimes.com/2011/10/13/us/odd-turn-for-mansour-arbabsiar-suspect-in-iranian-plot.html

U.S. Says Man Admitted Plot to Blow Up Passenger Jet

October 11, 2011
The New York Times
By MONICA DAVEY

DETROIT — Even before the plane had landed, a badly burned Umar Farouk Abdulmutallab was admitting to a fellow passenger that, yes, he had just been trying to ignite an explosive device, a prosecutor said Tuesday as Mr. Abdulmutallab’s trial on charges of trying to blow up a plane in 2009 began.

From there, the prosecutor says, Mr. Abdulmutallab made admissions that day, one after the next, to just about everyone he came across.

After the plane landed, he told a federal agent at the Detroit airport, “I’m with Al Qaeda,” the prosecutor told jurors. He told a paramedic that the odd powder in what was left of his underwear was something he had intended to inject with the contents of a syringe, apparently to set off a blast, the prosecutor said. And then, after treatment at a hospital, under questioning from another federal agent, he said that he was involved in jihad against the United States.

One day into his federal trial here, it remained uncertain what defense Mr. Abdulmutallab, a nonlawyer who is representing himself, intends to present. After Jonathan Tukel, an assistant United States attorney, described the outlines of the government’s case in a lengthy opening statement, a lawyer assigned to assist Mr. Abdulmutallab told jurors that the defense would, at least for now, offer no such opening.

So far, Mr. Abdulmutallab has offered only one hint, making it clear that he intends to call a passenger from among the 290 on Northwest Airlines Flight 253, which had traveled from Amsterdam to Detroit on Dec. 25, 2009. That passenger has suggested to The Associated Press that the United States government was itself involved in the bombing attempt as a way to spur the broad use of body scanners at airports.

In court, Mr. Abdulmutallab, 24, well-educated and from a well-to-do Nigerian family, said little. Facing eight federal counts including attempting to use a weapon of mass destruction and conspiring to commit an act of terrorism, he wore a colorful tunic, and grasped his hands before him and flipped through papers during much of the proceedings.

None of the scenes from earlier court meetings when Mr. Abdulmutallab called out remarks about Osama bin Laden or Anwar al-Awlaki, an American-born cleric with ties to a Qaeda affiliate, recurred on Tuesday as jurors were watching. If convicted, Mr. Abdulmutallab could face life in prison.

For their part, prosecutors laid out a case that appeared to be some cross between an ordinary lineup of witnesses to a crime and a rare courtroom primer in terrorism, Al Qaeda, jihad and martyrdom. Mr. Tukel told jurors that Mr. Abdulmutallab, while still in school, had begun to listen to the tape-recorded messages of Mr. Awlaki, the cleric who was recently killed by a missile from an American drone aircraft in Yemen.

“He wanted jihad, he sought it out and he found it,” Mr. Tukel said of Mr. Abdulmutallab.

The prosecutor flashed on a large screen an image of Mr. Abdulmutallab — before the plane incident — and a translation of parts of what Mr. Tukel described as a video message of martyrdom, which Qaeda elements released afterward in taking credit and giving praise for what had happened.

“My Muslim brothers in the Arabian Peninsula, you have to answer the call of jihad because the enemy is in your land along with the Jewish and Christian armies,” Mr. Abdulmutallab said in the video, according to Mr. Tukel.

Prosecutors are expected to call other passengers from the flight, which Mr. Tukel said included people from 26 countries, several babies, and some people who were headed toward holiday festivities or visits to ill relatives.

After almost eight hours in flight, the plane was preparing to land in Detroit when a loud pop sounded from among the passengers. Some saw smoke and fire rising from the lap of Mr. Abdulmutallab, who had covered himself with a blanket and said nothing. Again and again, the man next to him said, “Your pants are on fire!” a witness recalled, but Mr. Abdulmutallab sat silent.

Eventually, with passengers screaming and confused, several tackled Mr. Abdulmutallab and yanked him from his window seat. Flight attendants put out the fire in his lap with extinguishers, and the plane began an emergency landing.

As the passengers held Mr. Abdulmutallab on the cabin floor, Mike Zantow, a Wisconsin resident who had been sitting right behind him, said he noticed that the man’s cargo-style pants were around his knees, and that his underwear looked peculiar, almost like a child’s pull-up or an adult diaper. Mr. Zantow testified, “They were bulky, and they were burning.”

    U.S. Says Man Admitted Plot to Blow Up Passenger Jet, NYT, 11.10.2011,
    http://www.nytimes.com/2011/10/12/us/prosecution-says-suspect-admitted-trying-to-blow-up-plane.html

Justifying the Killing of an American

October 11, 2011
The New York Times

The Obama administration apparently spent months considering the legal implications of targeting Anwar al-Awlaki, the American citizen who was killed in Yemen last month after being accused of being a terrorist organizer. It prepared a detailed and cautious memorandum to justify the decision — a refreshing change from the reckless legal thinking of the Bush administration, which rationalized torture, claimed unlimited presidential powers and drove the country’s fight against terrorists off the rails.

But the memo, as reported by Charlie Savage in The Times, is an insufficient foundation for a momentous decision by the government to kill one of its own citizens, no matter how dangerous a threat he was believed to be. For one thing, the administration has refused to make it public or even acknowledge its existence. It was described to Mr. Savage by anonymous officials, and the administration will not openly discuss even its most basic guidelines for choosing assassination targets.

The decision to kill Mr. Awlaki was made entirely within the executive branch. The memo was not shared with Congress, nor did any independent judge or panel of judges pass judgment. The administration set aside Mr. Awlaki’s rights to due process.

President Obama said Mr. Awlaki, a radical Muslim cleric, had taken “the lead role in planning and directing the efforts to murder innocent Americans.” The administration said he inspired several planned terrorist attacks, including the attempt to blow up a Detroit-bound airliner on Dec. 25, 2009. (Testimony in the trial of the accused bomber began on Tuesday.) Officials have said Mr. Awlaki’s role went beyond inspiration into operational planning of attacks, though they have not supplied proof of that. If the White House would release the evidence it has to back up these claims, it would have a better chance of justifying the cleric’s death.

The memo, prepared by two lawyers in the Justice Department’s Office of Legal Counsel, said Mr. Awlaki could be killed because he was taking part in the war between the United States and Al Qaeda and posed a significant threat to Americans, but it stopped short of analyzing the quality of the evidence. It said joining an enemy force deprived him of a citizen’s due process rights, citing several Supreme Court rulings that put the protection of innocent lives above the risk of possible death of a suspect.

Mr. Awlaki was not entitled to full protections — an open-court trial in absentia would have been time-wasting and impractical — but as an American, he was entitled to some. The memo said Mr. Awlaki should be captured if feasible — an important principle, even though the government did not believe it could safely put commandos in Yemen to capture him.

Due process means more than a military risk analysis. It requires unambiguous and public guidelines for how the United States will follow federal and international law in approving targeted killings, particularly of Americans. And it means taking the decision beyond the executive echo chamber. We have argued that judicial review is required, perhaps a closed-door court similar to the Foreign Intelligence Surveillance Court, before anyone, especially a citizen, is placed on an assassination list.

The Obama administration seems to know that antiterrorist operations do not escape the rule of law. Its case would be far stronger if it would say so, out loud.

    Justifying the Killing of an American, NYT, 11.10.2011,
    http://www.nytimes.com/2011/10/12/opinion/justifying-the-killing-of-an-american.html

Sunday Dialogue: The State of Our Liberties

October 8, 2011
The New York Times

Debating the U.S. responses to the terror threat,
including intelligence gathering, the watch list and targeted killings.

 

The Letter To the Editor:

In recent weeks there has been much discussion about how to judge America’s human rights record in the decade after 9/11, and the balance between civil liberties and security.

Could things have been worse? No doubt. We did not, for example, experience anything on the scale of the Japanese-American internment during World War II, and the government backed off some of its more Orwellian plans in the face of public opposition, including a huge database of personal information chillingly entitled the Total Information Awareness program.

But we should not underestimate the damage that has been done to our values, our reputation and the rule of law in the past decade.

The response to 9/11 included torture, extraordinary rendition, prolonged detention without charges or trial and secret imprisonment. Those grave abuses are an indelible part of our human rights legacy, even if they primarily occurred at Guantánamo and other overseas sites.

As recent events show, the government claims the unreviewable right to kill American citizens far from any battlefield based on uncertain standards and secret evidence.

Thousands of Americans now find themselves on government watch lists with no meaningful way to challenge their designation or have their names removed.

An enormous increase in government surveillance reaches far beyond those suspected of terrorism, inviting ethnic and religious profiling.

And, with each passing year, the risk increases that legal changes adopted after 9/11 that erode our civil liberties, like the Patriot Act, will become permanent fixtures of our legal system.

Finally, 10 years after 9/11, we have yet to hold accountable those who violated human rights in our name, or provide any meaningful remedy for those who suffered as a result.

STEVEN R. SHAPIRO
National Legal Director
American Civil Liberties Union
New York, Oct. 3, 2011

Readers React

The aggressive counterterrorism measures used by both the Bush and Obama administrations — renditions, warrantless surveillance, the Patriot Act — have certainly come with costs. But when considering the stakes involved with preventing further attacks, America’s responses to 9/11 have been prudent and measured.

Actionable intelligence remains the only way to level the playing field with mass-casualty-seeking terrorists operating in the shadows.

Mr. Shapiro says that although things could “have been worse” with regard to sacrificing civil liberties in the name of national security since 9/11, we should not underestimate “the damage that has been done to our values, our reputation and the rule of law.”

We should also not underestimate the far greater damage that would be done to America’s values, reputation and rule of law should another major 9/11-style terrorist attack occur. We can all agree that the aftermath would be horrific, with civil liberties and rule of law suffering perhaps the greatest harm.

STUART GOTTLIEB
New York, Oct. 5, 2011

The writer, a former Senate foreign policy adviser and speechwriter (1999-2003), teaches foreign policy and national security at Columbia University.

The terrorist watch list is one of the most effective tools in national and homeland security, and, unfortunately, the threat is still real.

The New York Times (“Antiterror Measures at Home,” editorial, Oct. 2) suggests that people should be notified if they are on the watch list. This would be shortsighted and dangerous. Under that approach, terrorists could learn their status and adapt their behavior to successfully carry out a terrorist attack and/or successfully escape.

The failed Times Square bomber, Faisal Shahzad, was apprehended trying to flee the country and is now in prison because of the watch list and its nondisclosure policy.

Moreover, if the intelligence about someone’s possible terrorist ties falls short of the courtroom standard of “beyond reasonable doubt,” it may still be appropriate for the person to be asked additional questions before entering the United States. Likewise, there is a vast difference between a prison sentence from a criminal conviction versus additional scrutiny at airports or denial of boarding an aircraft.

The watch list is the result of an exhaustive, multilayered and intelligence-driven process involving numerous government agencies that work together to ensure it is accurate and complete.

While homegrown terrorism is still a threat, American citizens represent less than 2 percent of the overall list, and fewer than 500 of them are on the no-fly list.

We are charged with safeguarding the American public while protecting civil liberties. The terrorist watch list is essential to both of these fundamental missions.

TIMOTHY J. HEALY
Director, Terrorist Screening Center, F.B.I.
Washington, Oct. 5, 2011

I agree with much of what Mr. Shapiro wrote, but one thing troubles me. He and many others who have condemned the killing of Anwar al-Awlaki, an American-born operative of Al Qaeda in Yemen, base their argument, at least in part, on their insistence that the killing took place “far from any battlefield.” I wonder what that means in this environment at this time in history.

Certainly most of us would agree that the days of well-defined battlefields from past wars such as the Civil War, World War I and World War II are unlikely to be seen again. So regardless of whether our conflict with Al Qaeda is a war or is more accurately defined some other way, where is the battlefield?

To put it another way, does Mr. Shapiro believe it’s ever permissible to kill an American in a foreign country when that American is a traitor who has taken a leadership role in an organization whose aim is to cause harm to the United States and to kill Americans, both military and civilian?

MATTHEW PETTIGREW
Narberth, Pa., Oct. 5, 2011

Most Americans, who view our nation as a leader in human rights and democracy, do not realize that we are vilified by the international humanitarian community as a country that is ambivalent about the use of torture.

Metin Basoglu, a Turkish psychiatrist, has found that psychological manipulations (threats of rape and death, threats to family, sham executions) are as deeply damaging as physical torture. And the science makes clear that waterboarding, which subjects a person to the feeling of asphyxiation, is without doubt torture. The Bush administration acknowledged using waterboarding on suspects.

We need an independent or Congressional investigation to examine how the trauma of 9/11 has affected our decisions to search for safety and security through the use of barbarous methods. Our nation can begin to restore our honor in the world only by acknowledging our mistakes and looking unflinchingly at this shameful moment in our history.

JAMES HALPERN
New Paltz, N.Y., Oct. 5, 2011

The writer is a professor of psychology and director of the Institute for Disaster Mental Health at the State University of New York at New Paltz.

Having been a member and supporter of the A.C.L.U. for over 50 years, I offer a demurral to a couple of points made by Mr. Shapiro.

He observes that the United States hasn’t experienced the equivalent of the Japanese-American internment (nicely understated term) in the years since 9/11. The federal government and most states have become more sophisticated in their crackdowns since World War II, which explains the narrower but nonetheless painful arrests and long confinements of thousands of innocent Muslims in the immediate aftermath of the 9/11 attacks.

Mr. Shapiro also mentions the federal government’s withdrawal of the Total Information Awareness program in the face of broad criticism, not least from the A.C.L.U. There is a phenomenon known as “mission creep” in government and military parlance. It’s taking place now as the government spreads its tentacles into the private lives of American citizens, whether suspects or not.

We see this in the enlistment by the F.B.I., for example, of state and local law enforcement agencies in obtaining information on the activities of the citizenry. Someone voices emphatic and entirely constitutional dissent on a Facebook page or in a Twitter message — even in a private e-mail — and, bingo!, he or she is on the government’s watch list.

If this isn’t a look into the approaching face of a full-blown, antidemocratic police state, then I can’t see what else it could be.

DON BAY
Ostersund, Sweden, Oct. 5, 2011

United States government officials who sanctioned torture in Guantánamo and at secret “black sites” after 9/11 must be held accountable. Imagine American outrage and revulsion if our service men and women were tortured under the guise that any pain short of the equivalent to the pain accompanying organ failure was permissible, as outlined in the infamous memos by the Justice Department lawyer John Yoo. In another hideous perversion, doctors, including psychiatrists, monitored American torture.

Former President George W. Bush and former Vice President Dick Cheney claim they have no regrets about sanctioning waterboarding. If they are so proud of it, if their “enhanced interrogation” was within the bounds of international law and human decency, why were torture tapes destroyed?

Shame on our own government and world leaders for giving the Bush administration a pass.

BARBARA SCHRATWIESER
Studio City, Calif., Oct. 4, 2011

America’s response to 9/11 is not only about the human rights of those affected by antiterrorist measures, but also about the human rights of the great many individuals protected by these measures. To balance these competing rights, steps taken in this battle must be carefully chosen and calibrated to the risks involved. A one-size-fits-all approach is inadequate.

Watch lists are an example of an area in which flexibility is needed. An Oct. 2 Times editorial noted critically that “even a not-guilty verdict may not always be enough to get someone off the list,” as if this fact were surprising or counterintuitive.

In fact, there should not be a single standard for criminal trials and watch lists. It is eminently reasonable that the standard of proof that society requires to keep an eye on an individual and potentially inconvenience him (in the name of public safety) should be considerably lower than the standard required to convict him and take away his freedom.

YACOV BALSAM
Woodmere, N.Y., Oct. 4, 2011

The Writer Responds

Mr. Gottlieb describes the government’s “aggressive counterterrorism measures” since 9/11 as “prudent and measured.” Significantly, however, his list of those measures omits any reference to torture.

He also does not explain why he regards the Bush administration’s program of warrantless surveillance as a “measured” response to 9/11 when its end run around the courts clearly violated a law designed to restrain the intelligence agencies. And, by suggesting that the government’s actions must have been “prudent” because we have so far avoided another 9/11, he assumes a cause and effect that is hotly debated.

Most fundamentally, the notion that the end justifies the means is incompatible with the rule of law and has no limiting principle. Human rights abuses are almost always justified as a temporary expedient prompted by a security crisis. We do not accept that explanation from others and we should not parrot it ourselves.

Mr. Healy asserts that watch lists serve a valuable purpose. Yes, but only if we’re watching the people who actually pose a threat. When individuals are stopped at the airport or prevented from boarding a plane without good reason, they shouldn’t have to rely on the government’s good graces to get off its list of suspected terrorists. This is not an issue of advance notice, but fundamental fairness.

In response to Mr. Pettigrew, American citizenship is not a free pass to launch attacks on the United States. However, unless we are facing a truly imminent threat, the government does not have a free pass to kill American citizens without charges or trial anywhere in the world. It is difficult to reconcile that principle with published reports that individuals can remain on a targeted kill list for months at a time. At a minimum, we cannot have a serious debate about this critical issue unless the government is more forthcoming in defining the limits of its claimed authority.

STEVEN R. SHAPIRO
New York, Oct. 6, 2011

    Sunday Dialogue: The State of Our Liberties, NYT, 8.10.2011,
    http://www.nytimes.com/2011/10/09/opinion/sunday/sunday-dialogue-the-state-of-our-liberties.html

Secret U.S. Memo Made Legal Case to Kill a Citizen

October 8, 2011
The New York Times
By CHARLIE SAVAGE

WASHINGTON — The Obama administration’s secret legal memorandum that opened the door to the killing of Anwar al-Awlaki, the American-born radical Muslim cleric hiding in Yemen, found that it would be lawful only if it were not feasible to take him alive, according to people who have read the document.

The memo, written last year, followed months of extensive interagency deliberations and offers a glimpse into the legal debate that led to one of the most significant decisions made by President Obama — to move ahead with the killing of an American citizen without a trial.

The secret document provided the justification for acting despite an executive order banning assassinations, a federal law against murder, protections in the Bill of Rights and various strictures of the international laws of war, according to people familiar with the analysis. The memo, however, was narrowly drawn to the specifics of Mr. Awlaki’s case and did not establish a broad new legal doctrine to permit the targeted killing of any Americans believed to pose a terrorist threat.

The Obama administration has refused to acknowledge or discuss its role in the drone strike that killed Mr. Awlaki last month and that technically remains a covert operation. The government has also resisted growing calls that it provide a detailed public explanation of why officials deemed it lawful to kill an American citizen, setting a precedent that scholars, rights activists and others say has raised concerns about the rule of law and civil liberties.

But the document that laid out the administration’s justification — a roughly 50-page memorandum by the Justice Department’s Office of Legal Counsel, completed around June 2010 — was described on the condition of anonymity by people who have read it.

The legal analysis, in essence, concluded that Mr. Awlaki could be legally killed, if it was not feasible to capture him, because intelligence agencies said he was taking part in the war between the United States and Al Qaeda and posed a significant threat to Americans, as well as because Yemeni authorities were unable or unwilling to stop him.

The memorandum, which was written more than a year before Mr. Awlaki was killed, does not independently analyze the quality of the evidence against him.

The administration did not respond to requests for comment on this article.

The deliberations to craft the memo included meetings in the White House Situation Room involving top lawyers for the Pentagon, State Department, National Security Council and intelligence agencies.

It was principally drafted by David Barron and Martin Lederman, who were both lawyers in the Office of Legal Counsel at the time, and was signed by Mr. Barron. The office may have given oral approval for an attack on Mr. Awlaki before completing its detailed memorandum. Several news reports before June 2010 quoted anonymous counterterrorism officials as saying that Mr. Awlaki had been placed on a kill-or-capture list around the time of the attempted bombing of a Detroit-bound airliner on Dec. 25, 2009. Mr. Awlaki was accused of helping to recruit the attacker for that operation.

Mr. Awlaki, who was born in New Mexico, was also accused of playing a role in a failed plot to bomb two cargo planes last year, part of a pattern of activities that counterterrorism officials have said showed that he had evolved from merely being a propagandist — in sermons justifying violence by Muslims against the United States — to playing an operational role in Al Qaeda in the Arabian Peninsula’s continuing efforts to carry out terrorist attacks.

Other assertions about Mr. Awlaki included that he was a leader of the group, which had become a “cobelligerent” with Al Qaeda, and he was pushing it to focus on trying to attack the United States again. The lawyers were also told that capturing him alive among hostile armed allies might not be feasible if and when he were located.

Based on those premises, the Justice Department concluded that Mr. Awlaki was covered by the authorization to use military force against Al Qaeda that Congress enacted shortly after the terrorist attacks of Sept. 11, 2001 — meaning that he was a lawful target in the armed conflict unless some other legal prohibition trumped that authority.

It then considered possible obstacles and rejected each in turn.

Among them was an executive order that bans assassinations. That order, the lawyers found, blocked unlawful killings of political leaders outside of war, but not the killing of a lawful target in an armed conflict.

A federal statute that prohibits Americans from murdering other Americans abroad, the lawyers wrote, did not apply either, because it is not “murder” to kill a wartime enemy in compliance with the laws of war.

But that raised another pressing question: would it comply with the laws of war if the drone operator who fired the missile was a Central Intelligence Agency official, who, unlike a soldier, wore no uniform? The memorandum concluded that such a case would not be a war crime, although the operator might be in theoretical jeopardy of being prosecuted in a Yemeni court for violating Yemen’s domestic laws against murder, a highly unlikely possibility.

Then there was the Bill of Rights: the Fourth Amendment’s guarantee that a “person” cannot be seized by the government unreasonably, and the Fifth Amendment’s guarantee that the government may not deprive a person of life “without due process of law.”

The memo concluded that what was reasonable, and the process that was due, was different for Mr. Awlaki than for an ordinary criminal. It cited court cases allowing American citizens who had joined an enemy’s forces to be detained or prosecuted in a military court just like noncitizen enemies.

It also cited several other Supreme Court precedents, like a 2007 case involving a high-speed chase and a 1985 case involving the shooting of a fleeing suspect, finding that it was constitutional for the police to take actions that put a suspect in serious risk of death in order to curtail an imminent risk to innocent people.

The document’s authors argued that “imminent” risks could include those by an enemy leader who is in the business of attacking the United States whenever possible, even if he is not in the midst of launching an attack at the precise moment he is located.

There remained, however, the question of whether — when the target is known to be a citizen — it was permissible to kill him if capturing him instead were a feasible way of suppressing the threat.

Killed in the strike alongside Mr. Awlaki was another American citizen, Samir Khan, who had produced a magazine for Al Qaeda in the Arabian Peninsula promoting terrorism. He was apparently not on the targeting list, making his death collateral damage. His family has issued a statement citing the Fifth Amendment and asking whether it was necessary for the government to have “assassinated two of its citizens.”

“Was this style of execution the only solution?” the Khan family asked in its statement. “Why couldn’t there have been a capture and trial?”

Last month, President Obama’s top counterterrorism adviser, John O. Brennan, delivered a speech in which he strongly denied the accusation that the administration had sometimes chosen to kill militants when capturing them was possible, saying the policy preference is to interrogate them for intelligence.

The memorandum is said to declare that in the case of a citizen, it is legally required to capture the militant if feasible — raising a question: was capturing Mr. Awlaki in fact feasible?

It is possible that officials decided last month that it was not feasible to attempt to capture him because of factors like the risk it could pose to American commandos and the diplomatic problems that could arise from putting ground forces on Yemeni soil. Still, the raid on Osama bin Laden’s compound in Pakistan demonstrates that officials have deemed such operations feasible at times.

Last year, Yemeni commandos surrounded a village in which Mr. Awlaki was believed to be hiding, but he managed to slip away.

The administration had already expressed in public some of the arguments about issues of international law addressed by the memo, in a speech delivered in March 2010 by Harold Hongju Koh, the top State Department lawyer.

The memorandum examined whether it was relevant that Mr. Awlaki was in Yemen, far from Afghanistan. It concluded that Mr. Awlaki’s geographical distance from the so-called hot battlefield did not preclude him from the armed conflict; given his presumed circumstances, the United States still had a right to use force to defend itself against him.

As to whether it would violate Yemen’s sovereignty to fire a missile at someone on Yemeni soil, Yemen’s president secretly granted the United States that permission, as secret diplomatic cables obtained by WikiLeaks have revealed.

The memorandum did assert that other limitations on the use of force under the laws of war — like avoiding the use of disproportionate force that would increase the possibility of civilian deaths — would constrain any operation against Mr. Awlaki.

That apparently constrained the attack when it finally came. Details about Mr. Awlaki’s location surfaced about a month ago, American officials have said, but his hunters delayed the strike until he left a village and was on a road away from populated areas.

    Secret U.S. Memo Made Legal Case to Kill a Citizen, NYT, 8.10.2011,
    http://www.nytimes.com/2011/10/09/world/middleeast/secret-us-memo-made-legal-case-to-kill-a-citizen.html

Secret panel can put Americans on "kill list'

Wed, Oct 5 2011
Reuters
By Mark Hosenball

WASHINGTON (Reuters) - American militants like Anwar al-Awlaki are placed on a kill or capture list by a secretive panel of senior government officials, which then informs the president of its decisions, according to officials.

There is no public record of the operations or decisions of the panel, which is a subset of the White House's National Security Council, several current and former officials said. Neither is there any law establishing its existence or setting out the rules by which it is supposed to operate.

The panel was behind the decision to add Awlaki, a U.S.-born militant preacher with alleged al Qaeda connections, to the target list. He was killed by a CIA drone strike in Yemen late last month.

The role of the president in ordering or ratifying a decision to target a citizen is fuzzy. White House spokesman Tommy Vietor declined to discuss anything about the process.

Current and former officials said that to the best of their knowledge, Awlaki, who the White House said was a key figure in al Qaeda in the Arabian Peninsula, al Qaeda's Yemen-based affiliate, had been the only American put on a government list targeting people for capture or death due to their alleged involvement with militants.

The White House is portraying the killing of Awlaki as a demonstration of President Barack Obama's toughness toward militants who threaten the United States. But the process that led to Awlaki's killing has drawn fierce criticism from both the political left and right.

In an ironic turn, Obama, who ran for president denouncing predecessor George W. Bush's expansive use of executive power in his "war on terrorism," is being attacked in some quarters for using similar tactics. They include secret legal justifications and undisclosed intelligence assessments.

Liberals criticized the drone attack on an American citizen as extra-judicial murder.

Conservatives criticized Obama for refusing to release a Justice Department legal opinion that reportedly justified killing Awlaki. They accuse Obama of hypocrisy, noting his administration insisted on publishing Bush-era administration legal memos justifying the use of interrogation techniques many equate with torture, but refused to make public its rationale for killing a citizen without due process.

Some details about how the administration went about targeting Awlaki emerged on Tuesday when the top Democrat on the House Intelligence Committee, Representative Dutch Ruppersberger, was asked by reporters about the killing.

The process involves "going through the National Security Council, then it eventually goes to the president, but the National Security Council does the investigation, they have lawyers, they review, they look at the situation, you have input from the military, and also, we make sure that we follow international law," Ruppersberger said.

LAWYERS CONSULTED

Other officials said the role of the president in the process was murkier than what Ruppersberger described.

They said targeting recommendations are drawn up by a committee of mid-level National Security Council and agency officials. Their recommendations are then sent to the panel of NSC "principals," meaning Cabinet secretaries and intelligence unit chiefs, for approval. The panel of principals could have different memberships when considering different operational issues, they said.

The officials insisted on anonymity to discuss sensitive information.

They confirmed that lawyers, including those in the Justice Department, were consulted before Awlaki's name was added to the target list.

Two principal legal theories were advanced, an official said: first, that the actions were permitted by Congress when it authorized the use of military forces against militants in the wake of the attacks of September 11, 2001; and they are permitted under international law if a country is defending itself.

Several officials said that when Awlaki became the first American put on the target list, Obama was not required personally to approve the targeting of a person. But one official said Obama would be notified of the principals' decision. If he objected, the decision would be nullified, the official said.

A former official said one of the reasons for making senior officials principally responsible for nominating Americans for the target list was to "protect" the president.

Officials confirmed that a second American, Samir Khan, was killed in the drone attack that killed Awlaki. Khan had served as editor of Inspire, a glossy English-language magazine used by AQAP as a propaganda and recruitment vehicle.

But rather than being specifically targeted by drone operators, Khan was in the wrong place at the wrong time, officials said. Ruppersberger appeared to confirm that, saying Khan's death was "collateral," meaning he was not an intentional target of the drone strike.

When the name of a foreign, rather than American, militant is added to targeting lists, the decision is made within the intelligence community and normally does not require approval by high-level NSC officials.

'FROM INSPIRATIONAL TO OPERATIONAL'

Officials said Awlaki, whose fierce sermons were widely circulated on English-language militant websites, was targeted because Washington accumulated information his role in AQAP had gone "from inspirational to operational." That meant that instead of just propagandizing in favor of al Qaeda objectives, Awlaki allegedly began to participate directly in plots against American targets.

"Let me underscore, Awlaki is no mere messenger but someone integrally involved in lethal terrorist activities," Daniel Benjamin, top counterterrorism official at the State Department, warned last spring.

The Obama administration has not made public an accounting of the classified evidence that Awlaki was operationally involved in planning terrorist attacks.

But officials acknowledged that some of the intelligence purporting to show Awlaki's hands-on role in plotting attacks was patchy.

For instance, one plot in which authorities have said Awlaki was involved Nigerian-born Umar Farouk Abdulmutallab, accused of trying to blow up a Detroit-bound U.S. airliner on Christmas Day 2009 with a bomb hidden in his underpants.

There is no doubt Abdulmutallab was an admirer or follower of Awlaki, since he admitted that to U.S. investigators. When he appeared in a Detroit courtroom earlier this week for the start of his trial on bomb-plot charges, he proclaimed, "Anwar is alive."

But at the time the White House was considering putting Awlaki on the U.S. target list, intelligence connecting Awlaki specifically to Abdulmutallab and his alleged bomb plot was partial. Officials said at the time the United States had voice intercepts involving a phone known to have been used by Awlaki and someone who they believed, but were not positive, was Abdulmutallab.

Awlaki was also implicated in a case in which a British Airways employee was imprisoned for plotting to blow up a U.S.-bound plane. E-mails retrieved by authorities from the employee's computer showed what an investigator described as " operational contact" between Britain and Yemen.

Authorities believe the contacts were mainly between the U.K.-based suspect and his brother. But there was a strong suspicion Awlaki was at the brother's side when the messages were dispatched. British media reported that in one message, the person on the Yemeni end supposedly said, "Our highest priority is the US ... 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?"

U.S. officials contrast intelligence suggesting Awlaki's involvement in specific plots with the activities of Adam Gadahn, an American citizen who became a principal English-language propagandist for the core al Qaeda network formerly led by Osama bin Laden.

While Gadahn appeared in angry videos calling for attacks on the United States, officials said he had not been specifically targeted for capture or killing by U.S. forces because he was regarded as a loudmouth not directly involved in plotting attacks.

    Secret panel can put Americans on "kill list', R, 5.10.2011,
    http://www.reuters.com/article/2011/10/05/us-cia-killlist-idUSTRE79475C20111005

A Closed-Mouth Policy Even on Open Secrets

October 4, 2011
The New York Times
By SCOTT SHANE

WASHINGTON — Speaking hours after the world learned that a C.I.A. drone strike had killed Anwar al-Awlaki in Yemen, President Obama could still not say the words “drone” or “C.I.A.”

That’s classified.

Instead, in an appearance at a Virginia military base just before midday Friday, the president said that Mr. Awlaki, the American cleric who had joined Al Qaeda’s branch in Yemen, “was killed” and that this “significant milestone” was “a tribute to our intelligence community.”

The president’s careful language was the latest reflection of a growing phenomenon: information that is public but classified.

The older and larger drone program in Pakistan, for instance, is a centerpiece of American foreign policy, discussed daily in the news media — but it cannot be mentioned at a public Congressional hearing. The State Department cables published by WikiLeaks can be found on the Web with a few mouse clicks and have affected relations with dozens of countries — but American officials cannot publicly discuss them.

Underlying these paradoxes is a problem that government officials, notably including Mr. Obama, have acknowledged and complained of for years: the gross overclassification of information.

The security agencies have become a mammoth secrets factory, staffed today by 4.2 million people who hold security clearances — a total disclosed for the first time last month, and far higher than even the biggest previous estimates. Their incentives are so lopsided in favor of secrecy that a new report proposes a surprising remedy: cash prizes for government workers who challenge improper classification.

The secrecy compulsion often merely makes the government look silly, as when obvious facts were excised from recent memoirs by former intelligence officers. But it can also hinder public debate of some of government’s most hotly contested actions.

Long before Friday’s drone strike, officials say, lawyers at the Central Intelligence Agency, the Justice Department and the White House painstakingly considered the legal justification for what amounted to the execution of an American citizen without trial. But even since the strike, officials have been willing to give only a brief summary of the government’s reasoning, refusing to make public the classified written opinion of the Justice Department’s Office of Legal Counsel, the authoritative arbiter of the law.

Steven Aftergood of the Federation of American Scientists, who has tracked government classification policies for two decades, said such secrecy about a disputed policy is “a kind of self-inflicted autism that cuts decision makers off from the input they need, both from inside the government and outside.” After last week’s strike, he added, “any justification for withholding the O.L.C. memo went away.”

The same closed-mouth approach has long applied to the drone campaign in Pakistan, which is old news but remains a top-secret covert action program. In June, at David H. Petraeus’s Senate confirmation hearing to become C.I.A. director, Senator Roy D. Blunt, Republican of Missouri, told Mr. Petraeus, the retiring Army general: “I want to talk a little bit about drones for a minute and the use of drones.”

There was a murmur of concern; C.I.A drones, though common knowledge, are unmentionable by government officials in public. Mr. Petraeus deftly dodged the issue by speaking of the military’s drones in Afghanistan, whose existence is not classified.

Administration officials said the drones are an especially delicate subject today because they are entangled with the United States’ complex relations with the governments of Pakistan and Yemen. But the same cannot be said of the Justice Department’s decade-old legal opinion justifying the National Security Agency’s program of wiretapping without warrants.

Matthew M. Aid, an intelligence historian, asked for that opinion two years ago under the Freedom of Information Act. In August, he finally got a few sentences of the 21-page opinion, written by John C. Yoo of the Bush Justice Department. The rest was blanked out and remains secret.

Nor is the secrecy limited to counterterrorism. Jeffrey Richelson, an author of books on intelligence, asked the C.I.A. last year for any reports by its Center on Climate Change and National Security, which had drawn criticism from Republicans in Congress. The agency said last month that all such material “is currently and properly classified and must be denied in its entirety.”

In a report on overclassification to be released on Wednesday, the Brennan Center for Justice at New York University’s law school concludes that unnecessary classification has jeopardized national security by hindering information sharing inside the government, and corroded democratic government by stifling debate.

The report finds that the thousands of officials who classify information err on the side of secrecy, to play it safe or to avoid public scrutiny of policies. Among the remedies the report proposes, in addition to $50 or $100 prizes for successfully challenging a secrecy ruling, is requiring officials to explain in writing why they are classifying a document and asking agency inspectors general to perform spot audits and punish improper classification.

The Obama administration’s record on transparency is mixed; it has set a record for prosecuting leaks of classified information to the news media but has also moved to reverse the tide of secrets. In December 2009, Mr. Obama ordered agencies to update their rules to avoid overclassification, and Mr. Aftergood said there were glimmers of progress.

For instance, he said, the Defense Department has canceled some 82 outdated “classification guides,” written instructions on what should be secret. That turns out to be only 4 percent of the department’s classification guides, he said, but the review is not over.

“It’s movement,” Mr. Aftergood said. “Instead of the perennial growth of the classification system, it’s shrinkage. It’s a start.”

    A Closed-Mouth Policy Even on Open Secrets, NYT, 4.10.2011,
    http://www.nytimes.com/2011/10/05/us/politics/awlaki-killing-is-awash-in-open-secrets.html

The Killing of a Qaeda Leader in Yemen

October 3, 2011
The New York Times

To the Editor:

It defies logic for some people to argue that Anwar al-Awlaki, an American-born leader of Al Qaeda in the Arabian Peninsula, was denied “due process of law” as an American citizen when drones attacked and killed him in Yemen (“Judging a Long, Deadly Reach,” news analysis, front page, Oct. 1).

If a person took hostages and threatened to kill them in an American city, authorities unable to negotiate their release might have to use deadly force to try to free them. Mr. Awlaki openly vowed to kill Americans and urged others to do so. He had operated unencumbered and inaccessible for years in lawless Yemen.

The United States is in a war like no other. Al Qaeda and its followers, strong or weak, are the enemies at the gate now.

President Obama, after due deliberation, did what was right to fulfill his constitutional oath to protect the American people.

HERB LINNEN
Washington, Oct. 1, 2011



To the Editor:

The Treason Act, passed by the English Parliament in 1351, defined treason as “when a man doth compass or imagine the Death of our Lord the King.” But even then a man could not be legally put to death unless a court was satisfied that he had contemplated the king’s death.

The fact that it was easier to summarily execute Anwar al-Awlaki and Samir Khan than to capture and try them is a poor excuse to violate the due process clause, which is as basic a guarantee of liberty as anything in the United States Constitution. Until we restore it to its rightful place, we are back in the Middle Ages.

PETER WEISS
Vice President
Center for Constitutional Rights
New York, Oct. 1, 2011



To the Editor:

Regardless of whether Anwar al-Awlaki was a serious loss for Al Qaeda, killing him adds up to a serious loss for us.

The action fuels a growing perception that we, like Al Qaeda, are violent and lawless. In Mr. Awlaki’s case, it cheapens American citizenship. And using drones to take down human targets looks more like computer gaming, with other people’s lives at stake, than responsible international behavior. For all these reasons, attacks of this kind strengthen our adversaries.

Our strongest suit as a nation is our tradition of respect for the rule of law and for the rights of our fellow human beings. The cost of this attack is far higher than any return it could possibly offer.

MARY R. HOLBROW
Cambridge, Mass., Oct. 1, 2011



To the Editor:

Legal and moral objections to the targeted killing of an American citizen who has joined the enemy in wartime could easily be resolved by the passage of legislation that would give the president, after appropriate review, the power to revoke that person’s citizenship. Such legislation should give a person whose citizenship is revoked the right to challenge the action in federal court, but only if he appears personally before the judge.

MICHAEL B. GOTKIN
New York, Oct. 1, 2011



To the Editor:

Re “Yemen Strike Reflects U.S. Shift to Drones as Cheaper War Tool” (front page, Oct. 2):

The “classified memorandum” that supports the extrajudicial killing of American citizens by drones may satisfy the consciences of those permitted to see it. But such secret justifications recall the torture memorandums of a previous administration.

What will it profit us if we reduce “risk” and “cost” but in doing so lose our soul as a nation?

PHILIP FRIED
New York, Oct. 2, 2011



To the Editor:

When a person threatens to murder you, it is wise to believe him, and to take the appropriate steps to protect yourself.

MARVIN WAXNER
Plainview, N.Y., Oct. 1, 2011

    The Killing of a Qaeda Leader in Yemen, NYT, 3.11.2011,
    http://www.nytimes.com/2011/10/04/opinion/the-killing-of-a-qaeda-leader-in-yemen.html

As the West Celebrates a Cleric’s Death, the Mideast Shrugs

October 1, 2011
The New York Times
By ANTHONY SHADID and DAVID D. KIRKPATRICK

BEIRUT, Lebanon — Until about two years ago, few in Yemen or the Arab world had heard of Anwar al-Awlaki, the American-born propagandist for Islamic radicalism whose death President Obama celebrated as a major blow against Al Qaeda.

“A dime-a-dozen cleric” was one response, by Gregory Johnsen, a Princeton professor who studies Yemen. Another: “I don’t think your average Middle Easterner knows who Anwar al-Awlaki is,” said Emad Shahin, a scholar of political Islam at Notre Dame University.

While Western officials and commentators saw the end of Mr. Awlaki as another serious loss for Al Qaeda, a very different reception in the Middle East was the latest reminder of the disconnect between American aims and Arab perceptions. In a region transfixed by the drama of its revolts, Mr. Awlaki’s voice has had almost no resonance.

“I don’t think this will really get people’s interest, I can’t imagine why it would,” said Shadi Hamid, director of research at the Brookings Doha Center. “It seems totally irrelevant to how Arabs view the world right now. They don’t care about Awlaki.”

It is a remarkable feature in the Arab world these days how little Al Qaeda actually comes up in conversations. Even before the eruption of revolts and revolutions, a group that bore some responsibility for two wars and deepening American involvement from North Africa to Iraq was losing its significance. When Osama bin Laden died, his killing seemed more an epitaph for another era. As is often remarked, the events of Sept. 11 seem a historical note to much of an Arab population where three in five are younger than 30.

In that atmosphere, many saw Mr. Awlaki’s death as an essentially American story: here was a man that American attention helped create, and its Hellfire missiles killed, in a campaign born out of American fears of homegrown militancy. What distinguished Mr. Awlaki was not his ideas or influence but his American upbringing, passport and perfectly idiomatic English.

“When the Obama administration and the U.S. media started focusing on him, that is when Al Qaeda in the Arabian Peninsula pushed him to the fore,” Mr. Johnsen said, referring to the group’s Yemeni branch. “They were taking advantage of the free publicity, if you will. And any stature he has now in the Arab world is because of that.”

Another analyst, Michael Wahid Hanna, a fellow at the Century Foundation, echoed the idea that Mr. Awlaki’s fluency in English generated more interest about him. “The U.S. focus on Awlaki was a function of his language abilities and their understanding of his role as a recruiter and propagandist. If recent events can be said to further marginalize violent rejectionists such as Bin Laden and Ayman al-Zawahri, then there is very little room for a virtual unknown such as Awlaki to command any serious attention.”

Mr. Hanna said that was even more the case with the Arab world having plunged into what he described as “this transformational juncture.”

Given the enormity of political turmoil that has toppled or threatened leaders across the region, many in the Arab world appeared to see Mr. Awlaki’s death not as a turn in the battle between the United States and Al Qaeda but rather as a twist in the dramas of popular uprisings in Yemen and five other states.

Commentators evaluated his killing mainly as a potential factor in the Obama administration’s relations with Yemen, where pressure on President Ali Abdullah Saleh to step down has intensified. “The White House: This will not change our call for the departure of the Yemeni president,” was the headline in the Saudi-owned newspaper Asharq Alawsat.

Some feared Mr. Saleh would use the killing to try to convince the United States that he remained an essential ally in the battle against Al Qaeda in the Arabian Peninsula. Others hoped that the American perception of a defeat for Al Qaeda might encourage the Obama administration to turn its back on Mr. Saleh.

“For Yemenis, they are much more likely to see this in terms of the domestic drama,” said Sheila Carapico, an expert on Yemen and professor at the University of Richmond. “Al Qaeda does have some role to play. But the standard narrative in Yemen is that Ali Abdullah Saleh cultivated Al Qaeda for a long time.”

Analysts are debating how much of an operational role Mr. Awlaki might have played in the group. One view is that Mr. Awlaki was more important as a source of inspiration than as a vital facilitator for attacks: Mr. Awlaki’s words appear to have touched a chord with a series of independent freelancers like the American Army officer of Palestinian descent who opened fire at Fort Hood in 2009, or the Pakistani-American who last year attempted to set off a bomb in Times Square. Those cases helped stoke national anxieties about a new wave of homegrown militants, evidence of which still seems incidental.

Whether the interest in his words was a cause or a symptom of their motivation to violence is, of course, impossible to answer, like the related question of whether they would have acted without him. But he is not unique in his role as the American voice of Al Qaeda recruiting. United States counterterrorism officials say there are as many as 100 English-language sites offering militant Islamic views.

Samir Khan, a Saudi-born American who moved to Yemen two years ago and was killed along with Mr. Awlaki, produced Inspire magazine, a Qaeda publication aimed at English-speaking Muslims. Its issue celebrating the 10th anniversary of the Sept. 11 attacks included an interview with Adam Yahiye Gadahn, an American convert and Qaeda supporter also based in Yemen.

Mr. Johnsen argued that Al Qaeda would continue to try to court potential “lone wolves” inside the United States as Mr. Awlaki did because they cost little in training or organization, for a big potential payoff in attacks. But others in the Middle East suggested a turn toward audiences in Europe and the United States seemed symptomatic of their flagging audience here.

Assassinations of top leaders have done little to diminish the pull of militant organizations like Hamas in the Palestinian territories and Hezbollah in Lebanon — with mass constituencies, extensive charitable outreach and pervasive grassroots networks. But then Al Qaeda shares almost none of those attributes; so amorphous, it sometimes seems more a state of mind.

“It doesn’t really matter who leads Hamas,” said Mr. Hamid, at Brookings. “The organization is much stronger than the sum of its individuals. It probably does have more of an impact with a group like Al Qaeda, which is losing support, hemorrhaging support. It needs all the leaders it can get. It needs all the members it can get to stay viable.”

 

Anthony Shadid reported from Beirut, and David D. Kirkpatrick from Cairo.

    As the West Celebrates a Cleric’s Death, the Mideast Shrugs, 1.10.2011,
    http://www.nytimes.com/2011/10/02/world/middleeast/as-the-west-celebrates-awlakis-death-the-mideast-shrugs.html

Yemen Notes Its Own Role in U.S. Attack on Militant

October 1, 2011
The New York Times
By LAURA KASINOF

SANA, Yemen — Yemeni officials provided more details on Saturday about their role in the tracking and killing of an American-born cleric, while a government spokesman said that the United States should show more appreciation to Yemen’s embattled president for his assistance in the case.

A high-ranking Yemeni official who spoke on the condition of anonymity said that Yemen had provided the United States with intelligence on the location of the cleric, Anwar al-Awlaki, who was killed by an American drone strike on Friday. The information came from “a recently captured Al Qaeda operative,” the official said.

He said that Yemeni security officials located Mr. Awlaki on Friday morning in a house in the village of Al Khasaf in Al Jawf Province. The remote village lies in a desert where the Yemeni state has no control and tribes with varying loyalties rule.

The United States said that Mr. Awlaki, a propagandist for the Yemeni branch of Al Qaeda, had taken on an operational role in the organization, and last year the Obama administration placed him on a list of targets to kill or capture. The Yemeni group, Al Qaeda in the Arabian Peninsula, is considered Al Qaeda’s “most active operational affiliate,” President Obama said Friday, and the United States was a major target.

The State Department issued a travel alert on Saturday, warning that the attack “could provide motivation” for retaliatory attacks worldwide against American citizens and interests.

The killing came a week after the return to Yemen of President Ali Abdullah Saleh, who had been recovering in Saudi Arabia from wounds sustained in an assassination attempt and whose resignation after 33 years of autocratic rule has been demanded by a large protest movement in Yemen, the political opposition, regional powers and the United States.

The timing of the airstrikes fueled speculation that Mr. Saleh, who has frequently portrayed himself as an essential bulwark against Al Qaeda, had handed over Mr. Awlaki to the Americans in order to reduce American pressure on him to leave.

American officials said Friday that there was no connection between Mr. Saleh’s return and the airstrikes. They said that American and Yemeni security forces had been hunting Mr. Awlaki for nearly two years, and that new information about his location surfaced about three weeks ago.

That information allowed the C.I.A. to track his movements, the officials said, and wait for an opportunity to strike when there was little risk to civilians.

A senior American official made it clear on Saturday that Mr. Saleh’s immediate resignation remained a goal of American policy and said that Yemen’s government was under no “significant illusion” that the United States had changed its position.

“Sustaining military-to-military cooperation is in our best interest,” the official added, speaking on the condition of anonymity. “We don’t want to undermine that cooperation.”

A Yemeni government spokesman, however, said that Mr. Saleh deserved credit for helping the Americans.

“After this big victory in catching Awlaki, the White House calls on the president to leave power immediately?” a deputy information minister, Abdu al-Janadi, told Reuters. “The Americans don’t even respect those who cooperate with them.”

The spokesman for Yemen’s opposition coalition, Mohammed Qahtan, rejected the idea that Mr. Awlaki’s killing was a feather in the government’s cap. Instead, it showed “the regime’s failure and weakness to perform its duty to arrest and try Awlaki in accordance with the Constitution,” Mr. Qahtan said. “And it’s that that forced America to go after him using their own means.”

Although Yemen did not carry out the strike, which was launched from a secret American base, Yemeni officials were quick to trumpet the results. A high-ranking Yemeni security official called The New York Times at 10:15 a.m. local time on Friday, about 20 minutes after the attack.

The Defense Ministry broadcast the announcement an hour later, hours before American officials made any public statement.

    Yemen Notes Its Own Role in U.S. Attack on Militant, NYT, 1.9.2011,
    http://www.nytimes.com/2011/10/02/world/middleeast/yemen-notes-its-own-role-in-us-attack-on-militant.html

Strike Reflects U.S. Shift to Drones in Terror Fight

October 1, 2011
The New York Times
By SCOTT SHANE and THOM SHANKER

WASHINGTON — The C.I.A. drone strike that killed Anwar al-Awlaki, the American-born propagandist for Al Qaeda’s rising franchise in Yemen, was one more demonstration of what American officials describe as a cheap, safe and precise tool to eliminate enemies. It was also a sign that the decade-old American campaign against terrorism has reached a turning point.

Disillusioned by huge costs and uncertain outcomes in Iraq and Afghanistan, the Obama administration has decisively embraced the drone, along with small-scale lightning raids like the one that killed Osama bin Laden in May, as the future of the fight against terrorist networks.

“The lessons of the big wars are obvious,” said Micah Zenko, a fellow at the Council on Foreign Relations, who has studied the trade-offs. “The cost in blood and treasure is immense, and the outcome is unforeseeable. Public support at home is declining toward rock bottom. And the people you’ve come to liberate come to resent your presence.”

The shift is also a result of shrinking budgets, which will no longer accommodate the deployment of large forces overseas at a rough annual cost of $1 million per soldier. And there have been improvements in the technical capabilities of remotely piloted aircraft. One of them tracked Mr. Awlaki with live video on Yemeni tribal turf, where it is too dangerous for American troops to go.

Even military officials who advocate for the drone campaign acknowledge that these technologies are not applicable to every security threat.

Still, the move to drones and precise strikes is a remarkable change in favored strategy, underscored by the leadership changes at the Pentagon and C.I.A. Just a few years ago, counterinsurgency was the rage, as Gen. David H. Petraeus used the strategy to turn around what appeared to be a hopeless situation in Iraq. He then applied those lessons in Afghanistan.

The outcome — as measured in political stability, rule of law and economic development — remains uncertain in both.

Now, Mr. Petraeus (he has chosen to go by his civilian title of director, rather than general) is in charge of the C.I.A., which pioneered the drone campaign in Pakistan. He no longer commands the troops whose numbers were the core of counterinsurgency.

And the defense secretary is Leon E. Panetta, who oversaw the escalation of drone strikes in Pakistan’s lawless tribal area as the C.I.A. director. Mr. Panetta, the budget director under President Bill Clinton, must find a way to safeguard security as the Pentagon purse strings draw tight.

Today, there is little political appetite for the risk, cost and especially the long timelines required by counterinsurgency doctrine, which involves building societies and governments to gradually take over the battle against insurgents and terrorists within their borders.

The apparent simplicity of a drone aloft, with its pilot operating from the United States, can be misleading. Behind each aircraft is a team of 150 or more personnel, repairing and maintaining the plane and the heap of ground technology that keeps it in the air, poring over the hours of videos and radio signals it collects, and gathering the voluminous intelligence necessary to prompt a single strike.

Air Force officials calculate that it costs $5 billion to operate the service’s global airborne surveillance network, and that sum is growing. The Pentagon has asked for another $5 billion next year alone for remotely piloted drone systems.

Yet even those costs are tiny compared with the price of the big wars. A Brown University study, published in June, estimates that the United States will have spent $3.7 trillion in Afghanistan and Iraq by the time the wars are over.

The drones may alienate fewer people. They have angered many Pakistanis, who resent the violation of their country’s sovereignty and the inevitable civilian casualties when missiles go awry or are directed by imperfect intelligence. But while experts argue over the extent of the deaths of innocents when missiles fall on suspected terrorist compounds, there is broad agreement that the drones cause far fewer unintended deaths and produce far fewer refugees than either ground combat or traditional airstrikes.

Still, there are questions of legality. The Obama administration legal team wrestled with whether it would be lawful to make Mr. Awlaki a target for death — a proposition that raised complex issues involving Mr. Awlaki’s constitutional rights as an American citizen, domestic statutes and international law.

The Justice Department’s Office of Legal Counsel eventually issued a lengthy, classified memorandum that apparently concluded it would be legal to strike at someone like Mr. Awlaki in circumstances in which he was believed to be plotting attacks against the United States, and if there was no way to arrest him. The existence of that memorandum was first reported Saturday by The Washington Post.

The role of drones in the changing American way of war also illustrates the increasing militarization of the intelligence community, as Air Force drone technologies for intelligence, surveillance and reconnaissance — and now armed with Hellfire missiles for strikes on ground targets — play a central role in C.I.A. operations. The blurring of military-intelligence boundaries includes former uniformed officers assuming top jobs in the intelligence apparatus and military commando units carrying out raids under C.I.A. command.

As useful as the drones have proved for counterterrorism, their value in other kinds of conflicts may be more limited. Against some of the most significant potential threats — a China in ascendancy, for example, or a North Korea or Iran with nuclear weapons — drones are likely to be of marginal value. Should military force be required as a deterrent or for an attack, traditional forces, including warships and combat aircraft, would carry the heaviest load.

Of course, new kinds of air power have often appeared seductive, offering a cleaner, higher-tech brand of war. Military officials say they are aware that drones are no panacea.

“It’s one of many capabilities that we have at our disposal to go after terrorists and others,” one senior Pentagon official said. “But this is a tool that is not a weapon for weapon’s sake. It’s tied to policy. In many cases, these weapons are deployed in areas where it’s very tough to go after the enemy by conventional means, because these terror leaders are located in some of the most remote places.”

In some ways, the debate over drones versus troops recalls the early months of George W. Bush’s administration, when the new president and his defense secretary, Donald H. Rumsfeld, envisioned how a revolution in military technology would allow the Defense Department to reduce its ground forces and focus money instead on intelligence platforms and long-range, precision-strike weapons.

Then came the attacks of Sept. 11, 2001, and the wars, first in Afghanistan and then in Iraq, in which ground forces carried out the lion’s share of the missions.

Mr. Zenko, of the Council on Foreign Relations, worries about the growing perception that drones are the answer to terrorism, just a few years after many officials believed that invading and remaking countries would prove the cure. The recent string of successful strikes has prompted senior Obama administration officials to suggest that the demise of Al Qaeda may be within sight. But the history of terrorist movements shows that they are almost never ended by military force, he said.

“What gets lost are all the other instruments of national power,” including diplomacy, trade policy and development aid, Mr. Zenko said. “But these days those tools never get adequate consideration, because drones get all the attention.”

 

Charlie Savage contributed reporting.

    Strike Reflects U.S. Shift to Drones in Terror Fight, NYT, 1.10.2011,
    http://www.nytimes.com/2011/10/02/world/awlaki-strike-shows-us-shift-to-drones-in-terror-fight.html