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History > 2013 > USA > Terrorism (I)



Senators Say Case Indicates

That Problems Persist

in Agencies’ Data Sharing


April 23, 2013
The New York Times



WASHINGTON — As investigators sought answers to what or who may have radicalized the suspects in the Boston Marathon bombings, leading lawmakers said Tuesday that potentially important clues about at least one of the men might not have been widely shared within investigative circles months before the attack.

Emerging from a closed two-hour hearing with three senior law enforcement and intelligence officials, several members of the Senate Intelligence Committee raised new questions about how the F.B.I. and the Department of Homeland Security apparently handled information about Tamerlan Tsarnaev, 26, the suspect who was killed in a shootout with the police on Friday.

“I’m very concerned that there still seem to be serious problems with sharing information, including critical investigative information,” Senator Susan Collins, Republican of Maine, told reporters. “That is troubling to me that this many years after the attacks on our country in 2001, that we still seem to have stovepipes that prevent information from being shared effectively, not only among agencies but also within the same agency, in one case.”

Senator Saxby Chambliss, a Georgia Republican who is the committee’s vice chairman, also voiced worries that efforts to break down barriers of communication between federal intelligence and law enforcement agencies after the Sept. 11, 2001, attacks may have started to erode. “There have been some stone walls and stovepipes reconstructed that were probably unintentional,” he said. “We’re going to continue to look at whether or not all the information was adequately shared and given to all the law enforcement agencies. If it wasn’t, we’ve got to fix that.”

Senator Dianne Feinstein, a California Democrat who heads the panel, said every investigation revealed flaws, but when asked at a briefing after the hearing if the F.B.I. had “dropped the ball,” she said, “No.”

None of the senators would identify what information was not shared adequately or which agencies were involved, but the issue seemed to center on Mr. Tsarnaev’s six-month trip in 2012 to Dagestan and Chechnya, predominantly Muslim republics in the North Caucasus region of Russia. Both have been hotbeds of militant separatists.

Testifying earlier in the day before the Senate Judiciary Committee, Homeland Security Secretary Janet Napolitano sought to clarify what the authorities knew about Mr. Tsarnaev’s trip. He left the country on Jan. 12 and returned on July 17.

His flight reservation set off a security alert to customs authorities when he departed, Ms. Napolitano said, in spite of a “mismatch” in the spelling of his name on his airline ticket, his travel document and the passenger manifest of his flight.

As a result of “redundancies” in the system, the error was detected, the secretary said, and “there was a ping on the outbound to customs.”

But when Mr. Tsarnaev returned, more than a year had gone by since the F.B.I. closed a background review of his possible links to extremist groups that had been requested by the Russian government in January 2011. It was determined that he posed no threat. The security alert “at that point was more than a year old and had expired,” Ms. Napolitano said.

It is not clear, however, that the customs security alert, flagging Mr. Tsarnaev’s travel to Russia, was ever passed on to the F.B.I. And even if it had been, it is not certain what the F.B.I. would have done with that information.

Once investigators closed the background check, it would have been a violation of federal guidelines to keep investigating Mr. Tsarnaev without additional information, a senior law enforcement official said.

Two months after he returned from Russia, Mr. Tsarnaev applied for naturalization. The application prompted Homeland Security Department officials to review a 2009 domestic abuse arrest, and they found he had not been convicted in that case. They also contacted the F.B.I. and learned that “no derogatory information” on him had emerged from an interview that the agency conducted in January 2011.

According to federal law enforcement officials, Homeland Security Department officials left the naturalization “pending,” without approving it, as a precaution to see if new information would emerge, but they did not open a new investigation.

Ms. Napolitano said that a bipartisan bill in the Senate to overhaul immigration would further tighten security, because it would require all passports to be electronically readable, to avoid errors in flight records.

More questions surfaced Tuesday evening when House members attended a classified hearing with Ms. Napolitano and Robert S. Mueller III, the director of the F.B.I. Some lawmakers emerged saying they still felt uninformed about many aspects of the case.

Representative Michael McCaul, a Texas Republican who heads the House Homeland Security Committee, said he and other members of Congress were frustrated by the lack of answers on why Mr. Tsarnaev’s trip to Russia slipped through the cracks.


Jeremy W. Peters contributed reporting.

    Senators Say Case Indicates That Problems
    Persist in Agencies’ Data Sharing, NYT, 23.3.2013,






Boston Suspects

Are Seen as Self-Taught and Fueled by Web


April 23, 2013
The New York Times


The portrait investigators have begun to piece together of the two brothers suspected of the Boston Marathon bombings suggests that they were motivated by extremist Islamic beliefs but were not acting with known terrorist groups — and that they may have learned to build bombs simply by logging onto the online English-language magazine of the affiliate of Al Qaeda in Yemen, law enforcement officials said Tuesday.

The investigation into the bombings is still in its earliest stages, and federal authorities were still in the process of corroborating some of the admissions that law enforcement officials said were made by the surviving suspect in the attacks, Dzhokhar Tsarnaev, 19. But they said some of his statements suggested that the two brothers could represent the kind of emerging threat that federal authorities have long feared: angry and alienated young men, apparently self-trained and unaffiliated with any particular terrorist group, able to use the Internet to learn their lethal craft.

Senator Marco Rubio, a Florida Republican who serves on the Senate Intelligence Committee, told reporters after emerging from a two-hour classified briefing with F.B.I. and intelligence officials Tuesday evening that the suspects were most likely radicalized over the Internet, but that investigators were still searching for possible sources of inspiration or support overseas.

“The increasing signals are that these were individuals who were radicalized, especially the older brother, over a period of time — radicalized by Islamist fundamentalist terrorists, basically using Internet sources to gain not just the types of philosophical beliefs that radicalized them, but also learning components of how to do these sorts of things,” Mr. Rubio told reporters.

“This is a new element of terrorism that we have to face in our country,” Mr. Rubio said. “We need to be prepared for Boston-type attacks, not just 9/11-type attacks.”

Dzhokhar Tsarnaev admitted to playing a role in the marathon bombings, which killed three people and wounded more than 260, and told federal agents that he and his brother were motivated by extremist Islamic beliefs, when he was interviewed Sunday at the hospital, law enforcement officials said.

Mr. Tsarnaev, who was recovering from gunshot wounds he received Friday while trying to elude the police, said that he and his brother had not been acting with any terrorist groups, the officials said, and told the investigators that they had learned about building explosive devices from Inspire, the online English magazine of the Qaeda affiliate in Yemen.

Now investigators will try to check Mr. Tsarnaev’s statements as they conduct a wide-ranging inquiry into the lives of the two brothers, speaking with people who knew them and looking at everything from items they left behind in their homes and, in the case of Dzhokhar Tsarnaev, his dorm room, to the lengthy digital trail they left through their e-mails and posts on social media sites. Investigators are still interested in a trip that his brother, Tamerlan Tsarnaev, 26, made to Dagestan and Chechnya last year.

Tamerlan Tsarnaev was killed early Friday morning after he was shot by the police and struck by the car his brother was driving as the younger man escaped, law enforcement officials said.

One law enforcement official said that investigators were interested in learning whether Tamerlan Tsarnaev’s wife, Katherine Russell, knew anything about the bombings.

“At one point, we were looking very hard at her, but less so now,” the official said. “But we are still looking at her.”

A lawyer for Ms. Russell released a statement on Tuesday saying that reports about her husband and her brother-in-law’s involvement in the Boston Marathon bombing came as “an absolute shock.” The lawyer, Amato A. DeLuca, also said that Ms. Russell, who grew up in North Kingstown, R.I., and met Mr. Tsarnaev when she was a student at Suffolk University, was “doing everything she can to assist with the investigation.”

Martin Richard, the 8-year-old boy killed in the bombings, was remembered at a private funeral with his immediate family on Tuesday morning. “This has been the most difficult week of our lives, and we appreciate that our friends and family have given us space to grieve and heal,” his parents, Bill and Denise, said in a statement.

And in Stoneham, Mass., roughly 12 miles outside Cambridge, hundreds of mourners attended a funeral Mass for Sean A. Collier, a campus police officer at the Massachusetts Institute of Technology who was shot and killed last Thursday night.

A law enforcement official said that the brothers had been linked to Officer Collier’s shooting by a man they carjacked later Thursday night. The brothers told the carjacking victim that they had killed a police officer and committed the marathon bombings, the official said.

Investigators believe that the officer was killed in an attempt to get his gun, the official said, adding that there were indications that the men had tried — but failed — to remove it from its triple-lock holster.

When Dzhokhar Tsarnaev spoke to investigators on Sunday, officials said, he indicated that he and his brother had learned to make the pressure-cooker bombs that they used at the marathon from Inspire, the online Al Qaeda magazine.

The magazine’s first issue came out in mid-2010, and contained bomb-making instructions in articles with titles like “Make a Bomb in the Kitchen of Your Mom.” Intelligence officials identified Samir Khan, a 24-year-old American, as the editor of the publication.

Mr. Khan, who grew up in Queens and North Carolina, proclaimed in the magazine in 2010 that he was “proud to be a traitor to America.” He was killed in the drone strike in Yemen in September 2011 that killed Anwar al-Awlaki, the radical Yemeni-American cleric who officials said was one of the Qaeda group’s top leaders and propagandists.

The brothers may have been planning the marathon attacks for several months. On Feb. 6, Tamerlan Tsarnaev bought fireworks at a Phantom Fireworks store in Seabrook, N.H., about an hour’s drive north of Boston, said William Weimer, the vice president of Phantom Fireworks, which is based in Youngstown, Ohio, and has 68 stores in 15 states.

“He came in and he asked the question that 90 percent of males ask when they walk into a fireworks store: ‘What’s the most powerful thing you’ve got?’ ” Mr. Weimer said in a telephone interview, adding that the store’s clerk had described the sale as “uneventful.”

Mr. Tsarnaev settled on a reloadable mortar kit called a Lock and Load, which comes with a launch tube and shells, Mr. Weimer said. But Mr. Weimer said that even if the brothers had harvested all the powder from the shells Mr. Tsarnaev bought that day, he did not believe it would have yielded enough explosives to make the two pressure cooker bombs that exploded on Boylston Street and the other devices that the suspects had with them when they were chased by the police early Friday morning.

Mr. Weimer said that his company, which sold fireworks in 2010 to Faisal Shahzad, who unsuccessfully tried to detonate a car bomb in Times Square, had checked its records for Mr. Tsarnaev’s name as soon as it was made public, and had given the information to the F.B.I.

Elmirza Khozhugov, 26, the ex-husband of Tamerlan Tsarnaev’s younger sister, Ailina, said that Tamerlan Tsarnaev had been enamored of conspiracy theories, and that he was also concerned by the wars in the Middle East.

“He was looking for connections between the wars in the Middle East and oppression of Muslim population around the globe,” Mr. Khozhugov said in an e-mail. “It was very hard to argue with him on themes somehow connected to religion. On the other hand, he did not hate Christians. He respected their faith. Never said anything bad about other religions. But he was angry that the world pictures Islam as a violent religion.”

Dzhokhar Tsarnaev’s court-appointed lawyers took their first formal steps on Tuesday toward preparing his defense, filing a motion to request that the court provide them with additional expertise in death penalty cases.

Miriam Conrad, of the federal public defender’s office, asked Marianne B. Bowler, a federal magistrate judge, to appoint two lawyers “learned in the law applicable to capital cases.”

Outside the home of the Tsarnaev brothers’ parents in Makhachkala, Russia, friends of the family told reporters Tuesday afternoon that their mother, Zubeidat Tsarnaeva, had grown distraught after seeing a photograph of Tamerlan Tsarnaev on television.

Kheda Saratova, a well-known Chechen human rights activist and friend of the family, told reporters: “Please don’t torture this family, they want to wait awhile, they are in terrible grief. Please.”

“We must defend this family while the case is being investigated, so we can’t say anything for now,” she said.

Mrs. Tsarnaeva, who has given a number of interviews in recent days, walked out from behind her wearing a bright yellow head scarf, and made her way, through a scrum of photographers and reporters, to hail a taxi. “My son is just my son,” she said in English.



Reporting was contributed by William K. Rashbaum

from New York;

Serge F. Kovaleski, Michael Schwirtz, Wendy Ruderman,

Jess Bidgood,

John Eligon and Dina Kraft from Boston;

and Andrew Roth from Makhachkala, Russia.

    Boston Suspects Are Seen as Self-Taught and Fueled by Web, NYT, 23.4.2013,






Man Is Freed

as U.S. Questions Another

Over Poisoned Mail


April 23, 2013
The New York Times


Criminal charges were dropped Tuesday against a Mississippi man accused of mailing poisoned letters to President Obama and two other officials.

One day after the F.B.I. said it could find no evidence that the man, Paul Kevin Curtis, was behind the plot, a federal judge released him from jail and federal authorities shifted focus to another person of interest in the case.

Lawyers for Mr. Curtis, 45, a celebrity impersonator, said he had been framed by a longtime personal enemy, J. Everett Dutschke, a martial arts instructor from Tupelo, Miss. F.B.I. agents raided Mr. Dutschke’s house but did not immediately bring charges against him. Mr. Dutschke, reached by phone, denied involvement but did not elaborate.

At a news conference after his release, Mr. Curtis said he did not harbor any ill feelings toward prosecutors or the president and was relieved to be free. “I respect President Obama,” he said. “I love my country and would never do anything to pose a threat to him or any other U.S. official.”

Mr. Curtis, a party entertainer who dresses and sings as Elvis, Prince, Johnny Cash, Bon Jovi and others, had been in jail since Wednesday. He said he had never even heard of ricin. “I thought they said rice,” he said. “I said I don’t even eat rice.”

This month, Mr. Obama; Senator Roger Wicker, Republican of Mississippi; and Sadie Holland, a Lee County judge, received threatening letters postmarked Memphis and filled with a white powder. Tests confirmed it was ricin, a poison made from castor beans that can be lethal.

The letters read: “Maybe I have your attention now even if that means someone must die. This must stop. To see a wrong and not expose it, is to become a silent partner to its continuance.” They were signed: “I am KC and I approve this message,” a phrase that Mr. Curtis had used on his Facebook page.

According to a senior federal law enforcement official, the authorities were first drawn to Mr. Curtis because the language used in the letters was strikingly similar to language he had used before in letters to elected officials.

Prosecutors did not immediately respond to questions about the dropped charges. A court filing released Tuesday said the “ongoing investigation has revealed new information.”

Mr. Curtis thanked God and his lawyer for his release. A father of four, he has a long history of mental illness, including bipolar disorder, his friends and family have said. Last week, as he faced 15 years in jail, friends stood by him.

“He’s definitely been framed,” said Carol Scott, a longtime friend who is a nurse in Brisbane, Australia. “All I can tell you about him is he’s a well-respected man. He would not be guilty of anything.”

On Monday, an F.B.I. agent, Brandon Grant, said that investigators had not found ricin or ingredients for making it while searching Mr. Curtis’s house or vehicle. The F.B.I.’s search of Mr. Curtis’s computer found no evidence that he researched making ricin, Mr. Grant said.

On Tuesday, Senator Harry Reid of Nevada, the majority leader, said another ricin-laced letter may have been discovered at Bolling Air Force Base in Washington. Mr. Reid said he knew no details, and the base, where the Defense Intelligence Agency Headquarters is, did not release any information.

Mr. Dutschke was a rival of Mr. Curtis, according to Mr. Curtis’s lawyers. It is not known exactly why the two men began arguing, but Mr. Curtis said they swapped angry e-mails for years.

In January, Mr. Dutschke was arrested on charges of child molesting. He was released on a bond of $25,000 and is awaiting trial.

In 2007, he ran for a seat in the State Legislature and lost to the incumbent, Steve Holland. Mr. Holland’s mother is Sadie Holland, the judge who received one of the letters.


Cynthia Howle, Campbell Robertson

and Michael S. Schmidt contributed reporting.



This article has been revised to reflect the following correction:

Correction: April 23, 2013

An earlier version of this article misspelled, on one reference,

the surname of the Senate majority leader.

He is Harry Reid, not Reed.

    Man Is Freed as U.S. Questions Another Over Poisoned Mail, NYHT, 24.3.2013,





Man Charged

With Plotting Against U.S. Abroad


March 20, 2013
The New York Times


A man who prosecutors said was an overseas operative of Al Qaeda during the years following the Sept. 11 attacks was charged in Brooklyn with a host of terrorism charges, in the latest example of a foreigner accused of acts of terrorism abroad being extradited to American courts.

The man, Ibrahim Suleiman Adnan Adam Harun, who was from Saudi Arabia and a citizen of Niger, traveled to Afghanistan shortly before the attacks and stayed there afterward, training in Qaeda terrorist camps and then fighting American and coalition forces during the early years of the Afghan war, prosecutors said.

Mr. Harun, 43, is accused of traveling to Nigeria next to plot attacks against American diplomatic facilities in that country.

The charges include conspiring to murder American citizens, conspiring to bomb United States government facilities and providing material support to Al Qaeda. Court papers do not indicate whether he took steps to carry out attacks.

Mr. Harun, who is known by the Pashto pseudonym Spin Ghul, or White Rose, faces a maximum sentence of life in prison. He is scheduled to make his first appearance in Federal District Court in Brooklyn on Friday.

A lawyer for Mr. Harun, David Stern, declined to comment.

Mr. Harun landed on American soil in October after first being detained by two other countries. He was arrested in Libya in 2005 and held there until his release in summer 2011, when the Libyan government was crumbling.

According to his own account, cited in court records, Libyans placed him on a refugee ship bound for Italy. Mr. Harun said he was arrested by Italian law enforcement and imprisoned in that country after proclaiming his affiliation with Al Qaeda and assaulting Italian officers on the ship.

American law enforcement officials interviewed Mr. Harun in September 2011 while he was in Italian custody. Prosecutors said he waived his Miranda rights.

In a motion that was unsealed on Wednesday, prosecutors said that starting more than a decade ago, Mr. Harun was in direct contact with prominent Qaeda leaders, trainers and fighters. While in Africa, the defendant was also in contact with members of other extremist groups that were either affiliated with Al Qaeda or otherwise targeted Westerners.

A grand jury indicted Mr. Harun in February and the case remained under seal until Wednesday. Prosecutors said they kept the case secret to pursue information provided by Mr. Harun.

“Whether they try to attack our servicemen on the battlefield or scheme to kill our diplomats and citizens in embassies abroad, terrorists will find no refuge,” Loretta E. Lynch, the United States attorney for the Eastern District of New York, said in a statement.

The case of Mr. Harun follows several others in New York federal courts involving defendants who were apprehended abroad and extradited to the United States.

In December, three men of Somali descent — two were Swedish citizens and one a British citizen — appeared in Federal District Court in Brooklyn on charges that they had trained to be suicide bombers with a Somali terrorist group, Al Shabab. In June, an Eritrean man pleaded guilty in Federal District Court in Manhattan to conspiring to support Al Shabab.

    Man Charged With Plotting Against U.S. Abroad, NYT, 20.3.2013,






Repeal the Military Force Law


March 9, 2013
The New York Times


Three days after the Sept. 11, 2001, terrorist attacks, Congress approved the Authorization for Use of Military Force. It was enacted with good intentions — to give President George W. Bush the authority to invade Afghanistan and go after Al Qaeda and the Taliban rulers who sheltered and aided the terrorists who had attacked the United States.

But over time, that resolution became warped into something else: the basis for a vast overreaching of power by one president, Mr. Bush, and less outrageous but still dangerous policies by another, Barack Obama.

Mr. Bush used the authorization law as an excuse to kidnap hundreds of people — guilty and blameless people alike — and throw them into secret prisons where many were tortured. He used it as a pretext to open the Guantánamo Bay camp and to eavesdrop on Americans without bothering to obtain a warrant. He claimed it as justification for the invasion of Iraq, twisting intelligence to fabricate a connection between Saddam Hussein and the 9/11 attacks.

Unlike Mr. Bush, Mr. Obama does not go as far as to claim that the Constitution gives him the inherent power to do all those things. But he has relied on the 2001 authorization to use drones to kill terrorists far from the Afghan battlefield, and to claim an unconstitutional power to kill American citizens in other countries based only on suspicion that they are or might become terrorist threats, without judicial review.

The concern that many, including this page, expressed about the authorization is coming true: that it could become the basis for a perpetual, ever-expanding war that undermined the traditional constraints on government power. The result is an unintelligible policy without express limits or protective walls.

Last Wednesday, Attorney General Eric Holder said the president would soon shed more light on his “targeted killing” policy. Mr. Obama needs to. In the last few weeks, confusion over these issues has been vividly on display. On one hand, the administration has said it would use lethal force only when capturing a terrorist was impossible, and it did arrest Sulaiman Abu Ghaith, a son-in-law of Osama bin Laden who once served as a spokesman for Al Qaeda, and arraigned him on Friday in federal court in Manhattan. The Washington Post reported last week that counterterrorism officials considered using the authorization law as the basis for the government’s authority to kill Mokhtar Belmokhtar, a militant leader in Algeria and Mali, but decided it did not apply because he was not part of Al Qaeda or an associated group.

But the administration still has not fully disclosed to Congress the legal documents on which the targeted killing program is based. And in that same article, The Post said the administration was debating whether it could stretch the law to make it apply to groups that had no connection, or only slight ones, to Al Qaeda and the 9/11 attacks.

A big part of the problem is that the authorization to use military force is too vague. It gives the president the power to attack “nations, organizations or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on Sept. 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

Making the law more specific, however, would only further enshrine the notion of a war without end. And, as Jeh Johnson, then counsel to the defense secretary, said in a speech last November, “War must be regarded as a finite, extraordinary and unnatural state of affairs.”

The right solution is for Congress to repeal the 2001 authorization. It could wait to do that until American soldiers have left Afghanistan, which is scheduled, too slowly, for the end of 2014. Better yet, Congress could repeal it now, effective upon withdrawal.

    Repeal the Military Force Law, NYT, 9.3.2013,






How a U.S. Citizen

Came to Be in America’s Cross Hairs


March 9, 2013
The New York Times


WASHINGTON — One morning in late September 2011, a group of American drones took off from an airstrip the C.I.A. had built in the remote southern expanse of Saudi Arabia. The drones crossed the border into Yemen, and were soon hovering over a group of trucks clustered in a desert patch of Jawf Province, a region of the impoverished country once renowned for breeding Arabian horses.

A group of men who had just finished breakfast scrambled to get to their trucks. One was Anwar al-Awlaki, the firebrand preacher, born in New Mexico, who had evolved from a peddler of Internet hatred to a senior operative in Al Qaeda’s branch in Yemen. Another was Samir Khan, another American citizen who had moved to Yemen from North Carolina and was the creative force behind Inspire, the militant group’s English-language Internet magazine.

Two of the Predator drones pointed lasers on the trucks to pinpoint the targets, while the larger Reapers took aim. The Reaper pilots, operating their planes from thousands of miles away, readied for the missile shots, and fired.

It was the culmination of years of painstaking intelligence work, intense deliberation by lawyers working for President Obama and turf fights between the Pentagon and the C.I.A., whose parallel drone wars converged on the killing grounds of Yemen. For what was apparently the first time since the Civil War, the United States government had carried out the deliberate killing of an American citizen as a wartime enemy and without a trial.

Eighteen months later, despite the Obama administration’s effort to keep it cloaked in secrecy, the decision to hunt and kill Mr. Awlaki has become the subject of new public scrutiny and debate, touched off by the nomination of John O. Brennan, Mr. Obama’s counterterrorism adviser, to be head of the C.I.A.

The leak last month of an unclassified Justice Department “white paper” summarizing the administration’s abstract legal arguments — prepared months after the Awlaki and Khan killings amid an internal debate over how much to disclose — has ignited demands for even greater transparency, culminating last week in a 13-hour Senate filibuster that temporarily delayed Mr. Brennan’s confirmation. Some wondered aloud: If the president can order the assassination of Americans overseas, based on secret intelligence, what are the limits to his power?

This account of what led to the Awlaki strike, based on interviews with three dozen current and former legal and counterterrorism officials and outside experts, fills in new details of the legal, intelligence and military challenges faced by the Obama administration in what proved to be a landmark episode in American history and law. It highlights the perils of a war conducted behind a classified veil, relying on missile strikes rarely acknowledged by the American government and complex legal justifications drafted for only a small group of officials to read.

The missile strike on Sept. 30, 2011, that killed Mr. Awlaki — a terrorist leader whose death lawyers in the Obama administration believed to be justifiable — also killed Mr. Khan, though officials had judged he was not a significant enough threat to warrant being specifically targeted. The next month, another drone strike mistakenly killed Mr. Awlaki’s 16-year-old son, Abdulrahman, who had set off into the Yemeni desert in search of his father. Within just two weeks, the American government had killed three of its own citizens in Yemen. Only one had been killed on purpose.


An Evolving Threat

By the time the missile found him, Mr. Awlaki, 40, had been under the scrutiny of American officials for more than a decade. He first came under F.B.I. investigation in 1999 because of associations with militants and was questioned after the 2001 terrorist attacks about his contacts with three of the hijackers at his mosques in San Diego and Virginia. But at other times, presenting himself as a moderate bridge-builder, he gave interviews to the national news media, preached at the Capitol in Washington and attended a breakfast with Pentagon officials.

In 2002, after leaving the United States for good, he endorsed the notion that the land of his birth was at war with Islam. In London, and then in Yemen, where he was imprisoned for 18 months with American encouragement, Mr. Awlaki inched steadily closer to a full embrace of terrorist violence. His eloquent, English-language exhortations to jihad turned up repeatedly on the computers of young plotters of violence arrested in Britain, Canada and the United States.

By 2008, said Philip Mudd, then a top F.B.I. counterterrorism official, Mr. Awlaki “was cropping up as a radicalizer — not in just a few investigations, but in what seemed to be every investigation.”

In November 2009, when Maj. Nidal Malik Hasan, an Army psychiatrist, was charged with opening fire at Fort Hood in Texas and killing 13 people, Mr. Awlaki finally found the global fame he had long appeared to court. Investigators quickly discovered that the major had exchanged e-mails with Mr. Awlaki, though the cleric’s replies had been cautious and noncommittal. But four days after the shootings, the cleric removed any doubt about where he stood.

“Nidal Hassan is a hero,” he wrote on his widely read blog. “He is a man of conscience who could not bear living the contradiction of being a Muslim and serving in an army that is fighting against his own people.”

As chilling as the message was, it was still speech protected by the First Amendment. American intelligence agencies intensified their focus on Mr. Awlaki, intercepting communications that showed the cleric’s growing clout in Al Qaeda in the Arabian Peninsula, a Yemen-based affiliate of Osama bin Laden’s terrorist network.

On Dec. 24, 2009, in the second American strike in Yemen in eight days, missiles hit a meeting of leaders of the affiliate group. News accounts said one target was Mr. Awlaki, who was falsely reported to have been killed.

In fact, other top officials of the group were the strike’s specific targets, and Mr. Awlaki’s death would have been collateral damage — legally defensible as a death incidental to the military aim. As dangerous as Mr. Awlaki seemed, he was proved to be only an inciter; counterterrorism analysts did not yet have incontrovertible evidence that he was, in their language, “operational.”

That would soon change. The next day, a 23-year-old Nigerian named Umar Farouk Abdulmutallab tried and failed to blow up an airliner as it approached Detroit. The would-be underwear bomber told F.B.I. agents that after he went to Yemen and tracked down Mr. Awlaki, his online hero, the cleric had discussed “martyrdom and jihad” with him, approved him for a suicide mission, helped him prepare a martyrdom video and directed him to detonate his bomb over United States territory, according to court documents.

In his initial 50-minute interrogation on Dec. 25, 2009, before he stopped speaking for a month, Mr. Abdulmutallab said he had been sent by a terrorist named Abu Tarek, although intelligence agencies quickly found indications that Mr. Awlaki was probably involved. When Mr. Abdulmutallab resumed cooperating with interrogators in late January, an official said, he admitted that “Abu Tarek” was Mr. Awlaki. With the Nigerian’s statements, American officials had witness confirmation that Mr. Awlaki was clearly a direct plotter, no longer just a dangerous propagandist.

“He had been on the radar all along, but it was Abdulmutallab’s testimony that really sealed it in my mind that this guy was dangerous and that we needed to go after him,” said Dennis C. Blair, then director of national intelligence.


A Legal Quandary

David Barron and Martin Lederman had a problem. As lawyers in the Justice Department’s Office of Legal Counsel, it had fallen to them to declare whether deliberately killing Mr. Awlaki, despite his citizenship, would be lawful, assuming it was not feasible to capture him. The question raised a complex tangle of potential obstacles under both international and domestic law, and Mr. Awlaki might be located at any moment.

According to officials familiar with the deliberations, the lawyers threw themselves into the project and swiftly completed a short memorandum. It preliminarily concluded, based on the evidence available at the time, that Mr. Awlaki was a lawful target because he was participating in the war with Al Qaeda and also because he was a specific threat to the country. The overlapping reasoning justified a strike either by the Pentagon, which generally operated within the Congressional authorization to use military force against Al Qaeda, or by the C.I.A., a civilian agency which generally operated within a “national self-defense” framework deriving from a president’s security powers.

They also analyzed other bodies of law to see whether they would render a strike impermissible, concluding that they did not. For example, the Yemeni government had granted permission for airstrikes on its soil as long as the United States did not acknowledge its role, so such strikes would not violate Yemeni sovereignty.

And while the Constitution generally requires judicial process before the government may kill an American, the Supreme Court has held that in some contexts — like when the police, in order to protect innocent bystanders, ram a car to stop a high-speed chase — no prior permission from a judge is necessary; the lawyers concluded that the wartime threat posed by Mr. Awlaki qualified as such a context, and so his constitutional rights did not bar the government from killing him without a trial.

But as months passed, Mr. Barron and Mr. Lederman grew uneasy. They told colleagues there were issues they had not adequately addressed, particularly after reading a legal blog that focused on a statute that bars Americans from killing other Americans overseas. In light of the gravity of the question and with more time, they began drafting a second, more comprehensive memo, expanding and refining their legal analysis and, in an unusual step, researching and citing dense thickets of intelligence reports supporting the premise that Mr. Awlaki was plotting attacks.

Their labors played out against the backdrop of how some of their predecessors under President George W. Bush had become defined by their once-secret memos asserting a nearly unlimited view of executive authority, like that a president’s wartime powers allowed him to defy Congressional statutes limiting torture and surveillance.

Indeed, Mr. Barron and Mr. Lederman had produced a definitive denunciation of such reasoning, co-writing a book-length, two-part Harvard Law Review essay in 2008 concluding that the Bush team’s theory of presidential powers that could not be checked by Congress was “an even more radical attempt to remake the constitutional law of war powers than is often recognized.” Then a senator, Mr. Obama had called the Bush theory that a president could bypass a statute requiring warrants for surveillance “illegal and unconstitutional.”

Now, Mr. Barron and Mr. Lederman were being asked whether President Obama’s counterterrorism team could take its own extraordinary step, notwithstanding potential obstacles like the overseas-murder statute. Enacted as part of a 1994 crime bill, it makes no exception on its face for national security threats. By contrast, the main statute banning murder in ordinary, domestic contexts is far more nuanced and covers only “unlawful” killings.

As they researched the rarely invoked overseas-murder statute, Mr. Barron and Mr. Lederman discovered a 1997 district court decision involving a woman who was charged with killing her child in Japan. A judge ruled that the terse overseas-killing law must be interpreted as incorporating the exceptions of its domestic-murder counterpart, writing, “Congress did not intend to criminalize justifiable or excusable killings.”

And by arguing that it is not unlawful “murder” when the government kills an enemy leader in war or national self-defense, Mr. Barron and Mr. Lederman concluded that the foreign-killing statute would not impede a strike. They had not resorted to the Bush-style theories they had once denounced of sweeping presidential war powers to disregard Congressionally imposed limitations.

Due to return to academia in the fall of 2010, the two lawyers finished their second Awlaki memorandum, whose reasoning was widely approved by other administration lawyers, that summer. It had ballooned to about 63 pages but remained narrowly tailored to Mr. Awlaki’s circumstances, blessing lethal force against him without addressing whether it would also be permissible to kill citizens, like low-ranking members of Al Qaeda, in other situations.

Nearly three years later, a version of the legal analysis portions would become public in the “white paper,” which stripped out all references to Mr. Awlaki while retaining echoes, like its discussion of a generic “senior operational leader.” Divorced from its original context and misunderstood as a general statement about the scope and limits of the government’s authority to kill citizens, the free-floating reasoning would lead to widespread confusion.


Heightening Intelligence

Now the lawyers had twice signed off on killing Mr. Awlaki if he could not be captured — but the government still had no idea where in Yemen he was hiding. During the first half of 2010 the C.I.A. was just ramping up intelligence gathering in the country, and Saudi spies had yet to penetrate militant networks in Yemen deeply enough to learn the whereabouts of leaders of Al Qaeda in the Arabian Peninsula.

Mr. Awlaki appears to have hidden most of the time in Shabwa Province, several hours’ drive southeast of the capital, turf for Al Qaeda and also the traditional territory of his family’s powerful tribe, the Awaliq. Yemen’s cagey longtime president, Ali Abdullah Saleh, negotiated with tribal leaders, who offered to hold Mr. Awlaki under house arrest, according to a Yemeni official. The talks were inconclusive.

And there were other problems. A disastrous American missile strike in May 2010 accidentally killed a deputy provincial governor in Yemen and infuriated President Saleh, effectively suspending the clandestine war. It would be months before the Pentagon’s next strike in Yemen.

In August 2010, Mr. Awlaki’s father, with help from civil liberties groups, filed a lawsuit in Washington challenging the government plan to kill his son, which had been reported in the news media. In court filings, the administration marshaled its public claims against Mr. Awlaki and said he could always surrender.

But it also declared that courts should play no role in overseeing the executive branch’s wartime targeting decisions, argued that Mr. Awlaki’s father had no legal standing to bring the case, and invoked the state secrets privilege. In December 2010, a judge dismissed the suit.

Back in Yemen, the C.I.A. and the Pentagon used the pause in the air campaign to develop more sources inside the country. The National Security Agency stepped up monitoring of cellphones in Yemen and penetrated computer networks to intercept electronic messages. Aware that Mr. Obama, shaken by the underwear bombing attempt, was closely following the hunt, agencies competed to get new scraps about Mr. Awlaki into the president’s daily intelligence briefing, a former Defense Intelligence Agency analyst said.

And, very quietly, the C.I.A. began to build its own drone base in Saudi Arabia. Saudi officials had given the C.I.A. permission to build the base on the condition that the kingdom’s role was masked. And the base took care of a separate problem: the government of Djibouti, where the military was basing its drone operations in the region, put tight restrictions on any lethal operations carried out from its soil. The Saudi government made no similar demands.

Meanwhile, attacks linked in various ways to Mr. Awlaki continued to mount, including the attempted car bombing of Times Square in May 2010 by Faisal Shahzad, a naturalized American citizen who had reached out to the preacher on the Internet, and the attempted bombing by Al Qaeda in the Arabian Peninsula of cargo planes bound for the United States that October.

In late 2010 or early 2011, Yemeni security troops surrounded a village in Shabwa Province where Mr. Awlaki was reported to be hiding, said Gregory Johnsen, a Princeton scholar and author of “The Last Refuge: Yemen, al-Qaeda, and America’s War in Arabia.” But a house-to-house search did not find him.

At the White House, frustration was mounting.


The Hunt Narrows

Even as the hunt went on, Yemen’s strongman began to lose his grip on power as his country was caught up in the revolts sweeping the Arab world in early 2011.

That June, a barrage of rockets struck the room of the presidential palace where Mr. Saleh was hiding, severely injuring him and effectively ending his rule.

The weakening of Mr. Saleh gave the Americans more latitude for the Awlaki manhunt. By then, American and Saudi spies had turned a number of militants into sources, helping to guide American strikes.

In its most exotic effort to track the cleric, the C.I.A. worked with Danish intelligence to use Morten Storm, a Danish convert who had befriended Mr. Awlaki, to put a tracking device on the suitcase of a woman who had agreed to become the cleric’s third wife. The plan failed when Mr. Awlaki’s wary associates discarded the suitcase. But Mr. Storm also told the authorities that he communicated with Mr. Awlaki via a courier; it is not clear whether that courier eventually helped lead the C.I.A. to Mr. Awlaki’s location.

Other sources of information were also emerging, and one led to a new debate. In April 2011, the United States captured Ahmed Abdulkadir Warsame, a Somali man who worked closely with the Qaeda affiliate in Yemen. He was held aboard a naval vessel for more than two months and spoke freely to interrogators, including about his encounters with the former North Carolina man now editing the group’s magazine, Samir Khan.

While the United States had long tracked Mr. Khan, the new details from the Warsame interrogation raised the question of whether another American citizen should be considered for targeting. There was still scant evidence tying Mr. Khan to any specific plot, so the administration left him off the list. But events would not turn out so neatly.

In May 2011, days after the American commando raid in Pakistan that killed Bin Laden, the Pentagon’s Joint Special Operations Command, the hub for classified Army and Navy commando units, had its best chance to kill Mr. Awlaki as he moved around Shabwa Province. Drones and Marine Harrier jets fired at his truck, but he managed to escape and took refuge in a cave. According to Mr. Johnsen, the Princeton expert, Mr. Awlaki told friends that the episode “increased my certainty that no human being will die until they complete their livelihood and appointed time.”

Finally, by late September 2011, the C.I.A. base in Saudi Arabia was ready. Mr. Obama’s counterterrorism adviser, Mr. Brennan, directed that lead responsibility for the Awlaki hunt would be shifted to the agency. David H. Petraeus, who had taken over as C.I.A. director on Sept. 6, ordered several drones to be relocated from Pakistan to Saudi Arabia. By mid-September, the Americans were closing in — with updates from a C.I.A. source inside Al Qaeda in the Arabian Peninsula, officials say. That was when a very different search for Mr. Awlaki began.

As Mr. Awlaki had become one of the world’s most hunted terrorists, his 16-year-old son Abdulrahman had lived the life of a normal adolescent. He liked sports and music and kept his Facebook page regularly updated. But now he sneaked out of the family home in Sana, Yemen’s capital, leaving an apologetic note for his mother saying that he had gone to find his father.

But by the time the teenager headed to Shabwa, his father had left for Jawf Province, hundreds of miles away. Accompanied by Mr. Khan, the elder Awlaki moved about the rugged territory, wary of staying anywhere for long.

What he did not know was that the C.I.A.’s source was reporting the movements. On the morning of Sept. 30, guided by the tipster, the fleet of drones arrived above Jawf. Missiles destroyed the convoy.

The same day, at a military ceremony at Fort Myer in Arlington, Va., Mr. Obama took note of the victory for the immense American counterterrorism effort — but in oddly indirect language. Mr. Awlaki, he said, “was killed” in Yemen, and “this success is a tribute to our intelligence community and to the efforts of Yemen and its security forces who have worked closely with the United States.”

Mr. Obama had immediately declassified the Bin Laden raid. But this time he signaled that the operation in Yemen, though already reported around the globe, would remain officially unacknowledged. Members of Congress would speak only cautiously about it, and counterterrorism officials could discuss only privately what the whole world knew.

Administration officials who had labored for months to evaluate the killing of Mr. Awlaki took stock. Mr. Khan, whom they had specifically decided not to add to the kill list, was dead, too. While the lawyers believed that his killing was legally defensible as collateral damage, the death cast a cloud over all those months of seemingly cautious efforts to analyze who should go on the list and who should not.

Then, on Oct. 14, a missile apparently intended for an Egyptian Qaeda operative, Ibrahim al-Banna, hit a modest outdoor eating place in Shabwa. The intelligence was bad: Mr. Banna was not there, and among about a dozen men killed was the young Abdulrahman al-Awlaki, who had no connection to terrorism and would never have been deliberately targeted.

It was a tragic error and, for the Obama administration, a public relations disaster, further muddying the moral clarity of the previous strike on his father and fueling skepticism about American assertions of drones’ surgical precision. The damage was only compounded when anonymous officials at first gave the younger Mr. Awlaki’s age as 21, prompting his grieving family to make public his birth certificate.

He had been born in Denver, said the certificate from the Colorado health department. In the United States, at the time his government’s missile killed him, the teenager would have just reached driving age.

    The New York Times, NYT, 9.3.2013,






Bin Laden Relative With Qaeda Past

to Have New York Trial


March 7, 2013
The New York Times


WASHINGTON — Weeks after he was first arrested in Turkey, a son-in-law of Osama bin Laden who once served as a spokesman for Al Qaeda will appear in a New York courtroom on Friday to face terrorism charges that could result in life imprisonment.

Sulaiman Abu Ghaith, who is married to one of Bin Laden’s daughters, Fatima, is to be charged with conspiracy to kill Americans, according to an indictment released Thursday. Justice Department officials described him as a propagandist who they believe has not had an operational role in Al Qaeda for years and did not participate in the attacks on Sept. 11, 2001, or in any plots against the United States. But one law enforcement official said that Mr. Abu Ghaith, 47, was the most senior Qaeda figure to face criminal trial in New York since America’s war against the terrorist network began.

Details about Mr. Abu Ghaith’s arrest were sketchy on Thursday, but officials said he was originally detained last month while staying in a hotel in Ankara, Turkey, after crossing the border from Iran, where he had been living for about a decade. According to one person in Washington briefed on the matter, Turkish officials rebuffed demands by the Obama administration to directly hand him over to the United States, choosing instead to deport him to Kuwait, his home country. On a stopover in Amman, Jordan, American officials took him into custody and flew him to New York.

Jordan’s spy service, the General Intelligence Directorate, is one of the Central Intelligence Agency’s closest partners in the Middle East.

Mr. Abu Ghaith was a Muslim preacher and teacher in Kuwait who spoke out against Saddam Hussein’s invasion of Kuwait in 1990. In 2000, he traveled to Afghanistan, where he met Bin Laden and eventually married one of his daughters. He attracted wide attention in the days after the Sept. 11 attacks by making statements defending the attacks, some of them carried on Al Jazeera.

According to an indictment unsealed Thursday, Mr. Abu Ghaith appeared with Bin Laden andAyman al-Zawahri, who was then Bin Laden’s deputy, and warned the United States and its allies that a “great army is gathering against you.” He called upon “the nation of Islam” to do battle against “the Jews, the Christians and the Americans.”

He also urged people at a guesthouse in Kandahar, Afghanistan, to swear allegiance to Bin Laden, and on the night of the World Trade Center and Pentagon attacks, Bin Laden summoned him and asked for his assistance, which he agreed to provide, according to the indictment.

The arrest of Mr. Abu Ghaith was the rare occasion in which a Qaeda operative was detained overseas rather than killed. The Obama administration has expanded the use of targeted killing operations in Pakistan, Yemen and elsewhere, asserting that they are justified when there is no possibility of capture.

Spokesmen for the C.I.A. and the White House declined to comment.

Mr. Abu Ghaith went to Iran in 2002, one of a few Qaeda operatives who traveled there in the months after the Sept. 11 attacks. Intelligence officials have long debated how the group of operatives — several who are members of Al Qaeda’s “shura council” — has been treated inside Iran, and his trial could shed light on its members’ lives there. Some officials described them as being under a kind of house arrest, and point out that Iran — a country run by a Shiite Muslim theocracy — would be wary of any alliance with Al Qaeda, a Sunni terrorist network. Others believe that Iran might at least be using the group to keep open communication channels with senior Qaeda leaders in Pakistan.

In recent months, American spy agencies have picked up indications that the Qaeda operatives inside Iran — including Saif al-Adel, an Egyptian who is the terrorist group’s senior operative in Iran — might be trying to return to their home countries.

George Venizelos, the assistant director in charge of the New York F.B.I. office, compared Mr. Abu Ghaith’s position in Al Qaeda to the consigliere in a mob family, or propaganda minister in a totalitarian regime. He said Mr. Abu Ghaith used his role to persuade others to join “Al Qaeda’s murderous cause.”

Seth Jones, a terrorism expert at the RAND Corporation, said, “He had serious religious credibility inside of Al Qaeda.” Mr. Jones said that it was unlikely that Mr. Abu Ghaith would have intelligence about any active Qaeda plots, but that he could be a useful source of information about the movement of the group’s operatives through Iran.

In 2010, the Obama administration abandoned plans to bring five men charged with plotting the Sept. 11 attacks — including the accused mastermind, Khalid Shaikh Mohammed, a far more significant Qaeda figure — to trial in the same courthouse in Lower Manhattan where Mr. Abu Ghaith will appear Friday, blocks from the World Trade Center site.

The turnaround came in the face of nearly unanimous pressure from New York officials and business leaders after MayorMichael R. Bloombergof New York withdrew his initial support for the plan, saying the security costs and disruption would be too great. The police commissioner,Raymond W. Kelly, had outlined a plan for securing the trial that involved transforming a section of Lower Manhattan into an armed camp, blanketed with police checkpoints, vehicle searches, rooftop snipers and canine patrols. But should Mr. Abu Ghaith go to trial, officials said, the proceedings would most likely draw far less attention and create far fewer problems.

Three terrorism defendants, who were extradited from Britain in October, are already facing trial in Manhattan.

They include Abu Hamza al-Masri, the fiery Islamic preacher who has been charged with conspiring in a 1998 kidnapping of American and other tourists in Yemen and in trying to help establish a terrorist training camp in Oregon, and Adel Abdul Bary, charged with conspiring in the 1998 bombings of two United States Embassies in East Africa. Both have pleaded not guilty.

But the plan to put Mr. Abu Ghaith on trial in New York City drew immediate criticism.

Representative Mike Rogers, Republican of Michigan, the chairman of the House Select Intelligence Committee, said in a statement that Qaeda leaders captured on the battlefield should not be brought to the United States to stand trial. “We should treat enemy combatants like the enemy — the U.S. court system is not the appropriate venue. The president needs to send any captured Al Qaeda members to Guantánamo,” he said.

Julie Menin, the former chairwoman of Community Board 1 in Lower Manhattan, who opposed the earlier plan to try senior Qaeda operatives in New York, said she was in favor of a Manhattan trial for Mr. Abu Ghaith.

“I think it is a very different situation,” said Ms. Menin, who is running for Manhattan borough president and said her opposition to the earlier trial was based on the intense disruption that security precautions would have brought to the neighborhood.


Mark Mazzetti reported from Washington,

and William K. Rashbaum from New York.

Scott Shane contributed reporting from Washington,

and Benjamin Weiser from New York.

    Bin Laden Relative With Qaeda Past to Have New York Trial, NYT, 7.3.2013,






A Court for Targeted Killings


February 13, 2013
The New York Times


No American prosecutor can imprison or execute someone except on the orders of a judge or jury. That fundamental principle applies no less to the suspected terrorists that the executive branch chooses to kill overseas, particularly in the case of American citizens.

A growing number of lawmakers and experts are beginning to recognize that some form of judicial review is necessary for these killings, usually by missiles fired from unmanned drones. Last week, at the confirmation hearing of John Brennan to be the director of the C.I.A., several senators said they were considering the establishment of a special court, similar to the one that now decides whether to approve wiretapping for intelligence gathering.

Even President Obama, in his State of the Union address, said he wanted counterterrorism to be more transparent and fully consistent with checks and balances.

A special court, which we first proposed in a 2010 editorial, would be an analogue to the Foreign Intelligence Surveillance Court that Congress set up in 1978. If the administration has evidence that a suspect is a terrorist threat to the United States, it would have to present that evidence in secret to a court before the suspect is placed on a kill list.

“Having the executive being the prosecutor, the judge, the jury and the executioner, all in one, is very contrary to the traditions and the laws of this country,” Senator Angus King Jr. of Maine said at the Brennan hearing. “If you’re planning a strike over a matter of days, weeks or months, there is an opportunity to at least go to some outside-of-the-executive-branch body, like the FISA Court, in a confidential and top-secret way, make the case that this American citizen is an enemy combatant.”

Mr. Brennan said the idea was worthy of discussion, adding that the Obama administration had “wrestled with this.” Two other senators, Dianne Feinstein of California, the chairwoman of the Intelligence Committee, and Ron Wyden of Oregon, also expressed interest. Even Robert Gates, a former C.I.A. director who was defense secretary under President George W. Bush and President Obama, said on CNN that such a judicial panel “would give the American people confidence” that a proper case had been made against an American citizen.

The establishment of a court would have to be accompanied by clear and public standards for how a suspect can be named an enemy combatant and a detailed explanation of the process now used by the White House. (An opportunity for the president to demonstrate the transparency that he says he supports.) The court’s work would, in turn, have to be overseen by Congress, as the surveillance court is now. The court would not be expected to approve individual drone strikes, and the executive branch would still be empowered to take emergency actions to prevent an impending attack.

The surveillance court is often considered a rubber stamp; out of 32,000 wiretap applications presented by the government from 1979 to 2011, it rejected only 11. But its presence has helped ensure that the administration’s requests are serious. In 2002, it ruled that the Department of Justice had overstepped its bounds, giving prosecutors too much authority. (That decision was later overturned by an appeals court.) Creating an even stronger court to approve targeted killings is the first step Mr. Obama can take if he is serious about bringing national security policy back under the rule of law.

    A Court for Targeted Killings, NYT, 13.2.2013,






Congress to See Memo

Backing Drone Attacks on Americans


February 6, 2013
The New York Times


WASHINGTON — The White House on Wednesday directed the Justice Department to release to the two Congressional Intelligence Committees classified documents discussing the legal justification for killing, by drone strikes and other means, American citizens abroad who are considered terrorists.

The White House announcement appears to refer to a long, detailed 2010 memo from the Justice Department’s Office of Legal Counsel justifying the killing of Anwar al-Awlaki, an American-born cleric who had joined Al Qaeda in Yemen. He was killed in a C.I.A. drone strike in September 2011. Members of Congress have long demanded access to the legal memorandum.

The decision to release the legal memo to the Intelligence Committees came under pressure, two days after a bipartisan group of 11 senators joined a growing chorus asking for more information about the legal justification for targeted killings, especially of Americans.

The announcement also came on the eve of the confirmation hearing scheduled for Thursday afternoon for John O. Brennan, President Obama’s choice to be director of the C.I.A., who has been the chief architect of the drone program as Mr. Obama’s counterterrorism adviser.

Critics accused Mr. Obama of hypocrisy for keeping the legal opinions on targeted killing secret, noting that in 2009 he had ordered the public release of the classified memos governing C.I.A. interrogations under President George W. Bush. Administration officials replied that the so-called enhanced interrogations had been stopped, while drone strikes continue.

Until Wednesday, the administration had refused to even officially acknowledge the existence of the documents, which have been reported about in the press. This week, NBC News obtained an unclassified, shorter “white paper” that detailed some of the legal analysis about killing a citizen and was apparently derived from the classified Awlaki memorandum. The paper said the United States could target a citizen if he was a senior operational leader of Al Qaeda involved in plots against the country and if his capture was not feasible.

Administration officials said Mr. Obama had decided to take the action, which they described as extraordinary, out of a desire to involve Congress in the development of the legal framework for targeting specific people to be killed in the war against Al Qaeda. Aides noted that Mr. Obama had made a pledge to do that during an appearance on “The Daily Show” last year.

“Today, as part of the president’s ongoing commitment to consult with Congress on national security matters, the president directed the Department of Justice to provide the Congressional Intelligence Committees access to classified Office of Legal Counsel advice related to the subject of the Department of Justice white paper,” said an administration official who requested anonymity to discuss the handling of classified material.

The official said members of the Intelligence Committees would now get “access” to the documents.

Christopher Anders, senior legislative counsel for the American Civil Liberties Union, called the president’s move “a small step in the right direction.” But he noted that the legal memo or memos were not being shared with the Armed Services Committees, which have jurisdiction over Pentagon strikes, or the Judiciary Committees, which oversee the Justice Department. It was not clear whether the release involved more than one memo.

The public should be permitted to see at least a redacted version of the relevant material, Mr. Anders said. “Everyone has a right to know when the government believes it can kill Americans and others,” he said.

The Senate Intelligence Committee is expected to closely question Mr. Brennan about his role in the drone program during his hearing. Senator Ron Wyden, an Oregon Democrat who sits on the committee, said in a phone interview that he had been working in his office on questions for Mr. Brennan about 6:30 p.m. Wednesday when Mr. Obama called him and said that “effective immediately he was going to make the legal opinions available and he also hoped that there could be a broader conversation.”

Mr. Wyden has repeatedly called on the administration to release its legal memorandums laying out what the executive branch believes it has the power to do in national security matters, including the targeted killing of a citizen. Earlier on Wednesday, at a Democratic retreat in Annapolis, Md., he had hinted at a potential filibuster of Mr. Brennan’s nomination by vowing to “pull out all the stops to get the actual legal analysis, because without it, in effect, the administration is, in effect, practicing secret law.”

Mr. Wyden said that committee members would have immediate access to the material, and that there would be a process for other senators to read it eventually. It was not clear whether lawmakers’ legal aides would also be allowed to read it.

He said the administration’s decision to allow lawmakers “to finally see the legal opinions” was an “encouraging first step, and what I want to see is a bipartisan effort to build on it, particularly right now, when the lines are blurring between intelligence agencies and the military.”

The Congressional Intelligence Committees were created in the late 1970s to exercise oversight after a series of scandals at the spy agencies. The law requires that the committees be kept informed of intelligence activities. But most administrations withhold at least some legal opinions, treating them as confidential legal advice to the president and agency officials.

Senator Dianne Feinstein, the California Democrat who leads the Senate Intelligence Committee, said she was pleased by the president’s action. “It is critical for the committee’s oversight function to fully understand the legal basis for all intelligence and counterterrorism operations,” she said.

The New York Times and the American Civil Liberties Union have filed lawsuits to force the release of the classified legal opinions on targeted killing, including the one now going to the Intelligence Committees. A judge rejected the claims, and the decision is on appeal.

The use of unmanned drones in the war against terrorism — a technology that has greatly facilitated the ability of the government to kill specific people from any “hot” battlefield — has significantly escalated under Mr. Obama, who has used them to target Qaeda leadership. Mr. Obama has hailed his administration’s success in killing many in the terrorist organization’s senior ranks and undermining its ability to attack America.

But there have been persistent questions about how targets are chosen, especially when it comes to American citizens who the government says have taken up arms against their country as part of Al Qaeda or other terrorist organizations.

Mr. Obama and administration officials have said they are pursuing a “legal framework” for those decisions, and some top officials have given speeches describing that legal framework. The unclassified white paper had been provided to members of Congress but had not been released publicly.

Jay Carney, the White House press secretary, was asked on Wednesday morning whether the president owed the public a “clearer explanation” about the standards that the government must meet before it uses the drones to kill Americans overseas. He called that an “excellent question” and said Mr. Obama took it seriously.

“He’s talking about this in a very deliberative and thoughtful way about how we move forward as a nation on these issues, because, obviously, these are questions that will be with us long after he is president and long after the people who are in the seats that they’re in now have left the scene,” Mr. Carney said.

Asked about the timing of those deliberations, he said he did not have any information to provide. “But I just wanted to convey to you the seriousness with which the president approaches these issues, and he respects the questions being asked,” Mr. Carney said.


Charlie Savage contributed reporting.

    Congress to See Memo Backing Drone Attacks on Americans, NYT, 6.2.2013,






To Kill an American


February 5, 2013
The New York Times


On one level, there were not too many surprises in the newly disclosed “white paper” offering a legal reasoning behind the claim that President Obama has the power to order the killing of American citizens who are believed to be part of Al Qaeda. We knew Mr. Obama and his lawyers believed he has that power under the Constitution and federal law. We also knew that he utterly rejects the idea that Congress or the courts have any right to review such a decision in advance, or even after the fact.

Still, it was disturbing to see the twisted logic of the administration’s lawyers laid out in black and white. It had the air of a legal justification written after the fact for a policy decision that had already been made, and it brought back unwelcome memories of memos written for President George W. Bush to justify illegal wiretapping, indefinite detention, kidnapping, abuse and torture.

The document, obtained and made public by NBC News, was written by the Justice Department and coyly describes another, classified document (which has been described in The Times) that actually provided the legal justification for ordering the killing of American citizens.

That document still has not been provided to Congress, despite repeated demands from lawmakers. The white paper was sent to Capitol Hill seven months after the military carried out President Obama’s orders to kill Anwar al-Awlaki, an American who moved to Yemen and became an advocate of jihad against the United States.

In private, administration officials say Mr. Awlaki was a commander of an Al Qaeda affiliate and actively involved in planning attacks on the United States. Publicly, it has refused even to acknowledge that Mr. Obama ordered Mr. Awlaki killed or back up its claim that he was an active terrorist. The White House has vigorously fought holding any court hearing over the killing of Mr. Awlaki or his 16-year-old son, who was killed in a subsequent attack.

The American Civil Liberties Union is suing to have the operational memo on those killings released, arguing that an American citizen has constitutional rights that a judge must make sure are being respected. We agree.

According to the white paper, the Constitution and the Congressional authorization for the use of force after the attacks of Sept. 11, 2001, gave Mr. Obama the right to kill any American citizen that an “informed, high-level official” decides is a “senior operational leader of Al Qaeda or an associated force” and presents an “imminent threat of violent attack.”

It never tries to define what an “informed, high-level official” might be, and the authors of the memo seem to have redefined the word “imminent” in a way that diverges sharply from its customary meaning. It talks about “due process” and the need to balance a person’s life “against the United States’ interest in forestalling the threat of violence and death to other Americans.”

But it takes the position that the only “oversight” needed for such a decision resides within the executive branch, and there is no need to explain the judgment to Congress, the courts or the public — or, indeed, to even acknowledge that the killing took place.

The paper argues that judges and Congress don’t have the right to rule on or interfere with decisions made in the heat of combat. Some officials also draw a parallel to police officers who use violence to protect the innocent. Even in wartime, there are many ways to review commanders’ and soldiers’ decisions, and while courts-martial are internal to the military, their verdicts are subject to appeal to a civilian judge. When a police officer so much as discharges his weapon, it triggers a great deal of review, based on rules that are known to everyone.

The white paper “is a confusing blend of self-defense and law of war concepts and doesn’t clearly explain whether there is a different standard for killing a senior Al Qaeda leader depending on whether he is a citizen,” said Kate Martin, director of the Center for National Security Studies. “Its due process analysis is especially weak.”

The memo could and should have been released months ago. The administration could and should have provided a select number of lawmakers with the specifics on the killing of Mr. Awlaki and his son. The president could and should have acknowledged that decision and explained it.

Going forward, he should submit decisions like this one to review by Congress and the courts. If necessary, Congress could create a special court to handle this sort of sensitive discussion, like the one it created to review wiretapping. This dispute goes to the fundamental nature of our democracy, to the relationship among the branches of government and to their responsibility to the public.

    To Kill an American, NYT, 5.2.2013,






Who Says You Can Kill Americans, Mr. President?


January 16, 2013
The New York Times



PRESIDENT OBAMA has refused to tell Congress or the American people why he believes the Constitution gives, or fails to deny, him the authority to secretly target and kill American citizens who he suspects are involved in terrorist activities overseas. So far he has killed three that we know of.

Presidents had never before, to our knowledge, targeted specific Americans for military strikes. There are no court decisions that tell us if he is acting lawfully. Mr. Obama tells us not to worry, though, because his lawyers say it is fine, because experts guide the decisions and because his advisers have set up a careful process to help him decide whom he should kill.

He must think we should be relieved.

The three Americans known to have been killed, in two drone strikes in Yemen in the fall of 2011, are Anwar al-Awlaki, a radical Muslim cleric who was born in New Mexico; Samir Khan, a naturalized American citizen who had lived in New York and North Carolina, and was killed alongside Mr. Awlaki; and, in a strike two weeks later, Mr. Awlaki’s 16-year-old son, Abdulrahman al-Awlaki, who was born in Colorado.

Most of us think these people were probably terrorists anyway. So the president’s reassurances have been enough to keep criticism at an acceptable level for the White House. Democrats in Congress and in the press have only gingerly questioned the claims by a Democratic president that he is right about the law and careful when he orders drone attacks on our citizens. And Republicans, who favor aggressive national security powers for the executive branch, look forward to the day when one of their own can wield them again.

But a few of our representatives have spoken up — sort of. Several months ago, Senator Patrick J. Leahy, Democrat of Vermont and chairman of the Judiciary Committee, began limply requesting the Department of Justice memorandums that justify the targeted killing program. At a committee hearing, Attorney General Eric H. Holder Jr., reminded of the request, demurred and shared a rueful chuckle with the senator. Mr. Leahy did not want to be rude, it seems — though some of us remember him being harder on former President George W. Bush’s attorney general, Alberto R. Gonzales, in 2005.

So, even though Congress has the absolute power under the Constitution to receive these documents, the Democratic-controlled Senate has not fought this president to get them. If the senators did, and the president held fast to his refusal, they could go to court and demand them, and I believe they would win. Perhaps even better, they could skip getting the legal memos and go right to the meat of the matter — using oversight and perhaps legislating to control the president’s killing powers. That isn’t happening either.

Thank goodness we have another branch of government to step into the fray. It is the job of the federal courts to interpret the Constitution and laws, and thus to define the boundaries of the powers of the branches of government, including their own.

In reining in the branches, the courts have been toughest on themselves, however. A long line of Supreme Court cases require that judges wait for cases to come to them. They can take cases only from plaintiffs who have a personal stake in the outcome; they cannot decide political questions; they cannot rule on an issue not squarely before them.

Because of these and other limitations, no case has made it far enough in federal court for a judge to rule on the merits of the basic constitutional questions at stake here. A pending case filed in July by the families of the three dead Americans does raise Fourth and Fifth Amendment challenges to the president’s killings of their relatives. We will see if the judge agrees to consider the constitutional questions or dismisses the case, citing limitations on his own power.

In another case, decided two weeks ago, a federal judge in Manhattan, Colleen McMahon, ruled, grudgingly, that the American Civil Liberties Union and two New York Times reporters could not get access, under the Freedom of Information Act, to classified legal memorandums that were relied on to justify the targeted killing program. In her opinion, she expressed serious reservations about the president’s interpretation of the constitutional questions. But the merits of the program were not before her, just access to the Justice Department memos, so her opinion was, in effect, nothing but an interesting read.

So at the moment, the legislature and the courts are flummoxed by, or don’t care about, how or whether to take on this aggressive program. But Mr. Obama, a former constitutional law professor, should know, of all people, what needs to be done. He was highly critical when Mr. Bush applied new constitutional theories to justify warrantless wiretapping and “enhanced interrogation.” In his 2008 campaign, Mr. Obama demanded transparency, and after taking office, he released legal memos that the Bush administration had kept secret. Once the self-serving constitutional analysis that the Bush team had used was revealed, legal scholars from across the spectrum studied and denounced it.

While Mr. Obama has criticized his predecessor, he has also worried about his successors. Last fall, when the election’s outcome was still in doubt, Mr. Obama talked about drone strikes in general and said Congress and the courts should in some manner “rein in” presidents by putting a “legal architecture in place.” His comments seemed to reflect concern that future presidents should perhaps not wield alone such awesome and unchecked power over life and death — of anyone, not just Americans. Oddly, under current law, Congress and the courts are involved when presidents eavesdrop on Americans, detain them or harshly interrogate them — but not when they kill them.

It is not just the most recent president, this one and the next whom we need to worry about when it comes to improper exercise of power. It is every president. Mr. Obama should declassify and release, to Congress, the press and the public, documents that set forth the detailed constitutional and statutory analysis he relies on for targeting and killing American citizens.

Perhaps Mr. Obama still believes that, in a democracy, the people have a right to know the legal theories upon which the president executes his great powers. Certainly, we can hope so. After all, his interpretation might be wrong.


Vicki Divoll is a former general counsel to the Senate Select Committee

on Intelligence and former deputy legal adviser to the C.I.A.’s

Counterterrorism Center.

    Who Says You Can Kill Americans, Mr. President?, NYT, 16.1.2013,






Militants Seize Americans

and Other Hostages in Algeria


January 16, 2013
The New York Times


BAMAKO, Mali — The French military assault on Islamist extremists in Mali escalated into a potentially much broader North African conflict on Wednesday when, in retribution, armed attackers in unmarked trucks seized an internationally managed natural gas field in neighboring Algeria and took at least 20 foreign hostages, including Americans.

Algerian officials said at least two people, including a Briton, were killed in the assault, which began with a predawn ambush on a bus trying to ferry gas-field workers to an airport. Hundreds of Algerian security forces were sent to surround the gas-field compound, creating a tense standoff, and the country’s interior minister said there would be no negotiations.

Algeria’s official news agency said at least 20 fighters had carried out the attack and mass abduction. There were unconfirmed reports late on Wednesday that the security forces had tried to storm the compound and had retreated under gunfire from the hostage takers.

Many details of the assault on the gas field in a barren desert site near Libya’s border remained murky, including the precise number of hostages, which could be as high as 41, according to claims by the attackers quoted by regional news agencies. American, French, British, Japanese and Norwegian citizens who worked at the field were known to be among them, officials said.

Defense Secretary Leon E. Panetta called the gas-field attack a terrorist act and said the United States was weighing a response. His statement suggested that the Obama administration could be drawn into a military entanglement in North Africa that it had been seeking to keep at arm’s length — even as it has conceded that the region has become a new haven for extremists who threaten Western security and vital interests.

“I want to assure the American people that the United States will take all necessary and proper steps that are required to deal with this situation,” Mr. Panetta said during a visit to Italy.

The gas-field attack, which seemed to take foreign governments and the British and Norwegian companies that help run the facility completely by surprise, appeared to make good on a pledge by the Islamist militants who seized northern Mali last year to sharply expand their struggle against the West in response to France’s military intervention that began last week.

The hostage taking potentially broadened the conflict beyond Mali’s borders and raised the possibility of drawing an increasing number of foreign countries into direct involvement, particularly if expatriates working in the vast energy extraction industries of North Africa become targets. It also doubled, at least, the number of non-African hostages that Islamist militants in northern and western Africa have been using as bargaining chips to finance themselves in recent years through ransoms that have totaled millions of dollars.

But there was no indication that the gas-field attackers wanted money, and no other demands or ultimatums were issued. In a statement sent to ANI, a Mauritanian news agency, they demanded the “immediate halt of the aggression against our own in Mali.”

The statement, made by a group called Al Mulathameen, which has links to Al Qaeda in the Islamic Maghreb, the North African affiliate of Al Qaeda, claimed it was holding more than 40 “crusaders” — apparently a reference to non-Muslims — “including seven Americans, two French, two British as well as other citizens of various European nationalities.”

Algeria’s interior minister, Daho Ould Kablia, said, according to Reuters, that the raid was led by Mokhtar Belmokhtar, who fought Soviet forces in Afghanistan in the 1980s and recently set up his own group in the Sahara after falling out with other local Qaeda leaders.

Mr. Belmokhtar is known to French intelligence officials as “the Uncatchable” and to some locals as “Mister Marlboro” for his illicit cigarette-running business, the news agency said. His ties to Islamist extremists who seized towns across northern Mali last year are unclear.

The gas-field attack coincided with an escalation of the fight inside Mali, according to Western and Malian officials, as French ground troops, joined by soldiers of the Malian Army, engaged in combat with Islamist fighters. The officials said the French-Malian units had begun to beat back the Islamist militant advance southward from northern Mali, a move that had provoked the intervention ordered by President François Hollande of France.

The attackers seemed particularly incensed that Algeria’s government had permitted the French to use Algerian airspace to fly warplanes and military equipment into Mali, according to their statement, which may explain why they chose Algeria for retaliation. Some Algerian military experts said the Algerian public also was unhappy about the government’s decision.

“The setting in motion of a military machine in north Mali was going to have definite repercussions in Algeria,” said Mohamed Chafik Mesbah, a former Algerian Army officer and political scientist, adding, . “There are going to be much worse consequences. There will be more attacks.”

A senior Algerian official said the militants, who claimed to have come from Mali, had used three unmarked trucks to breach the gas-field compound, outside the town of In Amenas. An oil company official who had knowledge of the attack said the militants had shut down production at the site, an indication of carefully planning. But how and why they chose In Amenas, which is more than 700 miles from the Malian border and is much closer to Libya, were among the unknowns.

The facility is the fourth-largest gas development in Algeria, a major oil producer and OPEC member. The In Amenas gas compression plant is operated by BP of Britain, the Norwegian company Statoil and the Algerian national oil company Sonatrach.

Bard Glad Pedersen, a Statoil spokesman, said that of 17 Statoil employees who had been working in the field, four escaped to a nearby Algerian military camp, but he would not say how. The Sahara Media Agency of Mauritania, quoting what it described as a spokesman for the militants, said that they were holding five hostages in a production facility on the site and 36 others in a housing area, and that there were as many as 400 Algerian soldiers surrounding the operation. But that information could not be confirmed.

Islamist groups and bandits have long operated in the deserts of western and northern Africa, and a collection of Islamists have occupied the vast expanse of northern Mali since a government crisis in that country last March. Those groups, including Al Qaeda in the Islamic Maghreb, had pledged to strike against France’s interests on the continent and abroad, as well as those of nations backing the French operations. In France, security has been reinforced at airports, train stations and other public spaces.

The militant groups are financed in large part through ransoms paid for the freeing of Western hostages, and regular kidnappings have occurred in the West African desert in recent years. At least seven French citizens are presently being held there, officials say.

Oil and gas are central to the Algerian economy, accounting for more than a third of the country’s gross domestic product, over 95 percent of its export earnings and 60 percent of government financial receipts. Algeria is an important gas supplier to France, Spain, Turkey, Italy and Britain.

Algeria has also historically been known as a relatively secure place for foreign companies to work and invest. Sonatrach and the security forces had put tight security around oil and gas facilities during the struggle with Islamic militants in the 1990s, when energy infrastructure was never a major insurgent target.

Energy experts expressed concern that the Algerian raid could signal a new strategy by Islamic militants to attack the West by focusing on Western-operated oil and gas facilities in the region.

Helima Croft, a Barclays Capital senior geopolitical strategist,said if groups like Al Qaeda in the Islamic Maghreb “decide as a change in tactic they go after Western energy interests, then you have to look at a threat in all these countries, including Libya, Nigeria and Morocco.”

She added: “This type of attack had to have advanced planning. It’s not an easy target of opportunity.”


Adam Nossiter reported from Bamako, and Scott Sayare from Paris.

Reporting was contributed by Clifford Krauss from Houston,

Rick Gladstone from New York, Elisabeth Bumiller from Rome,

and Alan Cowell and Steven Erlanger from Paris.

    Militants Seize Americans and Other Hostages in Algeria, NYT, 16.1.2013,






Being Bin Laden


January 16, 2013
The New York Times



IF I had known that my nostrils’ poking out of a body bag would be the main feature of my performance in Kathryn Bigelow’s film “Zero Dark Thirty,” it would have saved me eight weeks of heart palpitations as I prepared for my role as Osama bin Laden.

How does one play the global face of evil? I wasn’t sure at first if I could actually pull it off. I didn’t have an agent looking after me or a team around me to help prepare for the part. I hadn’t seen the script. And I was definitely not “Bin Laden skinny.”

My journey to becoming Bin Laden started in March of last year, when I got a call from a casting director in London, who said she had been trying to get hold of me for a week — apparently the phone number I had registered on the Spotlight database, an online resource used to contact actors, was an old one. I apologized. She asked if I could come in the next day. I said yes, what for? She said she couldn’t tell me.

The next week, I was offered the part of the world’s most notorious terrorist. My first reaction was an expletive that cannot be printed here. I am a 29-year-old native Londoner, a moderate Sikh with a drama degree from Royal Holloway, University of London — a pretty far cry from a 54-year-old Saudi multimillionaire-turned-terrorist who had been on the lam for nearly a decade after murdering some 3,000 people. I guess I do look a bit like Bin Laden — I am 6 feet 4 inches tall, about what he was. I have brown skin and a prominent nose, but it’s not as though anyone has ever stopped me in the street and shouted, “Hey, aren’t you Bin Laden?” (And I think I have a better smile — not as creepy. At least my girlfriend says so.)

It’s not that easy to be an actor of Asian ancestry in Britain or America. There are fewer leading roles for us, but then again, there are also probably fewer of us going up for those roles.

Of course, the problems of Asian actors can’t be compared with the suffering of both Sikhs and Muslims who have been targeted and killed in hate crimes. I was in London on July 7, 2005, when terrorists detonated bombs on three subways and one bus, killing 52 people and injuring 770. My two sisters take the Tube to work and could easily have been among the victims. If anything, this spurred me to take on more challenging roles, to contribute to the conversation about the joys and challenges of living in a diverse society.

I started taking acting seriously when I joined the National Youth Theater at 17 years old. I also toured with a theater company in Valencia, Spain, practicing commedia dell’arte (my favorite form of theater). Before “Zero Dark Thirty,” I didn’t have much experience in film. I did, however, have some prior experience playing faces of terror. In the 2010 British comedy film “The Infidel,” I played Hazeem — a henchman of a character loosely based on Abu Hamza al-Masri, the hook-handed Islamist preacher who was captured in Britain in 2004 and extradited last year to the United States. (He is now in federal prison in Manhattan awaiting trial.)

I guess playing Bin Laden was a natural progression, a graduation through the ranks of terrorists.

To prepare myself for the task, my friend Tara, who works for the Institute of Ismaili Studies, gave me a list of books to read about Bin Laden and Al Qaeda. I bought a set of Rosetta Stone CD’s to learn some basic Arabic. (I know a little Punjabi and Hindi, but they didn’t help me much.)

And then I tackled my weight. In the movies, after all, image is everything, and I was playing a very ill, thin man. Bin Laden reportedly lived on an ascetic diet of dates and yogurt. While on vacation in Jamaica, my friend Henry, a personal trainer, had me running up hills in the morning heat and eating only eggs, lean meat and fish to become a waif of Bin Laden’s ilk. I lost 25 pounds from my typically 200-pound frame.

Even after all this preparation, I was still nervous when I arrived last May on the “Zero Dark Thirty” set in Jordan. Playing a dead person was more difficult than I’d imagined. Holding my breath for more than 30 seconds felt like eternity. Through the stillness I could feel my heart making my rib cage vibrate. And being dumped into a body bag was certainly not as fun as having, say, an on-screen snog, but being carried in it was kind of reminiscent of being in a hammock. I got so comfortable in the bag that, by the end of the shoot, I was known as Osama bin Loungin’.

Other than what I’d seen in YouTube videos, I didn’t have much to go on when it came to playing Bin Laden in his last moments. I remembered the advice a director friend gave me: for the most honest portrayal, forget your perception of the politics and focus on the character’s basic motivation in that point in time.

In the film, you see only a shadow just before my character is — spoiler alert — killed. During the sequence in Bin Laden’s compound in Abbottabad, Pakistan, as the actors playing Navy SEALs stormed our eerily realistic set, we had shot some options showing him moving around. Because of how enigmatic he was, I had the freedom to play on what I had decided for myself would be his state of mind and body. I wasn’t thinking, “Bin Laden wouldn’t stand up or walk like this,” because, after so many years of house arrest, who knows how he carried himself?

The controversial movie has been a resounding success, nominated for five Oscars. I have returned to my normal life in London. The makeup and fake blood are gone, and my career’s been picking up somewhat. I’m working with a Swedish director, Kristoffer Dios, on a thriller. In the last decade my favorite films have been Swedish or Danish — I think their storytelling style is perfect.

But would I be prepared to play a universally despised emblem of evil again? I guess it would depend on how many lines I had.


Ricky S. Sekhon is an actor.

    Being Bin Laden, NYT, 16.1.2013,






Invasion of the Data Snatchers


January 13, 2013
The New York Times


YOU are the editor of a local newspaper. A reporter on your staff comes to you having obtained (by legal means) one of the following:

• Police records of arrests for drunken driving;

• The personal details of all the employees of local clinics that perform abortions;

• The subscriber list of a survivalist magazine with pronounced racist overtones;

• The names and addresses of food stamp recipients in your community;

• The donors to a group that promotes L.G.B.T. rights;

• The names of husbands accused of infidelity in divorce suits, along with the identities of the alleged lovers;

• Addresses of homes where pit bulls are kept.

The reporter proposes to publish the names and home addresses and map them on a large graphic, all part of an article on “The [drunks/abortionists/racists/poor/gays/cheats/scary dogs] next door.”

Some of these lists might strike you as fair game. (Many community newspapers publish D.U.I. arrests, presumably to shame the accused into driving sober.) Others probably make you uncomfortable or indignant. You might find that the tricky part is articulating why: what is the boundary between a public service and an invasion of privacy?

My hypothetical editor’s choice is inspired, of course, by an unhypothetical event: the decision by The Journal News in White Plains to map the names and addresses of 33,614 handgun permit holders in two surrounding counties, for a project called “The gun owner next door.” I’ll return to that decision, but the striking thing was the volume and venom of the reader backlash: thousands of comments — and not only from gun owners — overwhelmingly outraged, some of them suggesting that Journal News journalists deserved to have their identities stolen, their homes burgled, their children taunted or, predictably, to be shot.

When it comes to privacy, we are all hypocrites. We howl when a newspaper publishes public records about personal behavior. At the same time, we are acquiescing in a much more sweeping erosion of our privacy — government surveillance, corporate data-mining, political microtargeting, hacker invasions — with no comparable outpouring of protest. As a society we have no coherent view of what information is worth defending and how to defend it.

When our privacy is invaded in the name of national security, we — and our elected representatives, afraid to be thought soft — generally go along quietly. Our complacency is reinforced by a popular culture that has forsaken Orwell’s nightmares for a benign view of authority. In many of my own guilty-pleasure television favorites — “The Wire,” the British thriller series “MI-5,” the Danish original of “The Killing,” the addictive “Homeland” — surveillance is what the good guys do, and it saves the day.

Meanwhile, as Al Qaeda wanes, our surveillance state continues to grow more intrusive, with woefully little oversight or accountability.

Last month Julia Angwin of The Wall Street Journal disclosed that Attorney General Eric Holder had authorized the National Counterterrorism Center to copy and examine pretty much any information the government has collected about you. In the past, the agency couldn’t store information about ordinary Americans unless they were suspects in or party to a specific investigation. Under the new orders, flight records, lists of Americans hosting foreign-exchange students, financial records of people seeking federally backed mortgages, health records of patients at veterans’ hospitals — pick a database, and this obscure agency has permission to study it for patterns that ostensibly predict terrorist behavior, and to share it with foreign governments, whether or not you are suspected of any wrongdoing. The new rules were subjected to robust official debate — all behind closed doors.

Likewise, while we were all distracted by the dance on the fiscal cliff, the 112th Congress in its final days whisked through a renewal of the law that governs eavesdropping by American intelligence agencies on Americans’ phone calls and e-mail traffic. A couple of senators made modest attempts to hold the eavesdroppers more accountable by, for example, disclosing the number of law-abiding citizens whose communications have been intercepted. Their efforts were voted down.

“The Obama administration’s position on privacy is basically ‘Trust us, we’re good guys,’ ” said Daniel Solove of George Washington University, whose book “Nothing to Hide” challenges the myth that law-abiding citizens have nothing to fear from government snooping. “That’s exactly what Bush said. And it’s also the same thing that any despot says. We shouldn’t have to trust.”

Rigorous, independent oversight, he added, not only protects against abuses but also helps assure that what we do in the name of security actually works. But it doesn’t happen if we don’t demand it.

The government, of course, is not the only — not even the most aggressive — invader. You can take your pick of the ways Facebook and Google are monetizing you by serving up your personal profile and browsing habits to advertisers for profit. Some of this feels harmless, or even useful — why shouldn’t my mobile device serve me ads tailored to my interests? But some of it is flat-out creepy. One of the more obnoxious trends is the custom-targeting of that irresistibly vulnerable market, our children.

When our personal information is exploited this way, we may grumble, or we may seek the largely false comfort of tweaking our privacy settings, but we feel helpless before the mystifying rush of technology.

You would think the one sort of invasion just about everyone deplores was hacking. But even there we are ambivalent. When Rupert Murdoch’s tabloids were caught pillaging the voice mail of celebrities, the public response was muted; when it turned out that they had hacked the phone of a 13-year-old murder victim, the pitchforks and torches came out.

Or take the Steubenville case. In Steubenville, Ohio, authorities charged two members of the high school football team with the repeated rape of a passed-out-drunk 16-year-old, but did not charge the many others who allegedly cheered them on and made videos. So the online activists of Anonymous took it upon themselves to hack into private accounts, recover deleted and incriminating videos, and make them public. Amanda Marcotte wrestled with the moral dilemma on Slate: “By stepping in and holding people accountable, Anonymous stands a very good chance of taking action that actually does something to stop rape. But: This type of online vigilante justice is potentially invading the privacy of or defaming innocent Steubenville residents, and even if everything published is true, there are very serious legal limits to the Anonymous strategy.”

As a journalist, I’m more often on the side of the invaders than the invaded. I cherish the freedom to publish. But the freedom to publish includes the freedom not to publish when the cost outweighs the benefit.

Which brings me back to The Journal News and its gun project. I sympathize with the paper’s effort to dramatize the commonplace reality of gun ownership at a time when the subject is so sadly on our minds. I don’t buy the gun owners’ assertion that the disclosure is an invitation to burglars in search of firearms; on the contrary, the publicity sends criminals the same message as those front-door notices of your home alarm system: Try next door. It’s also conceivable that the attention will prompt some owners to lock up unsecured weapons.

But when you are going to make a sizable population of law-abiding citizens feel violated, you have to ask yourself, what is the offsetting gain? In this case, I think, not much. The information The Journal News provided its readers is so far from complete as to be misleading. The public records identify only legal handguns. They tell you nothing about the neighbor who has an equally legal and equally lethal rifle or shotgun, let alone an illegal weapon. The publication has not spurred a healthy debate; it has merely escalated a shouting match, and given the N.R.A. a new rallying cry. The outcry may even provoke state legislatures to withdraw gun databases from public records, so they will not be available when they might really be useful. It’s a close call, but I’d have found a different way to make the point.

    Invasion of the Data Snatchers, NYT, 13.1.2013,






Don’t Close Guantánamo


January 10, 2013
The New York Times



IN 2010, I was branded a member of the “Al Qaeda 7” — a notorious label attached to Department of Justice lawyers who were mocked by critics claiming they had “flocked to Guantánamo to take up the cause of the terrorists.” My crime: I advocated for the closure of the detention facility — a position that has also been taken up by the likes of former President George W. Bush, former Secretary of Defense Robert M. Gates and former Secretary of State Colin L. Powell — and for more humane living conditions for those imprisoned there.

At the time, I reacted defensively. I was indignant. I insisted on the legitimacy of my convictions. But even then the writing was on the wall. For a core group of detainees, closing Guantánamo would not mean release or prosecution, as most human rights and civil liberties groups have long advocated. Rather, it would mean relocation to the United States, or elsewhere, for continued detention.

Now, almost four years later, I have changed my mind. Despite recognizing the many policy imperatives in favor of closure, despite the bipartisan support for this position, and despite the fact that 166 men still languish there, I now believe that Guantánamo should stay open — at least for the short term.

While I have been slow to come to this realization, the signs have been evident for some time. Three years ago, Barack Obama’s administration conducted a comprehensive review of the Guantánamo detainees and concluded that about four dozen prisoners couldn’t be prosecuted, but were too dangerous to be transferred or released. They are still being held under rules of war that allow detention without charge for the duration of hostilities.

Others happened to hail from Yemen. Although many of them were cleared for transfer, the transfers were put on indefinite hold because of instability in Yemen, the fear that some might join Al Qaeda forces, and Yemen’s inability to put adequate security measures in place.

While the specific numbers have most likely shifted over time, the basic categories persist. These are men whom the current administration will not transfer, release or prosecute, so long as the legal authority to detain, pursuant to the law of war, endures.

President Obama raised the hopes of the human rights community when during his re-election campaign he once again said the detention center should be closed. But it was not clear whether he had a viable plan, and any such plan would almost certainly involve moving many of the detainees into continued detention in the United States, where their living conditions would almost certainly deteriorate.

Guantánamo in 2013 is a far cry from Guantánamo in 2002. Thanks to the spotlight placed on the facility by human rights groups, international observers and detainees’ lawyers, there has been a significant, if not uniform, improvement in conditions.

The majority of Guantánamo detainees now live in communal facilities where they can eat, pray and exercise together. If moved to the United States, these same men would most likely be held in military detention in conditions akin to supermax prisons — confined to their cells 22 hours a day and prohibited from engaging in group activities, including communal prayer. The hard-won improvements in conditions would be ratcheted back half a decade to their previous level of harshness.

And Guantánamo would no longer be that failed experiment on an island many miles away. The Obama administration would be affirmatively creating a new system of detention without charge for terrorism suspects on American soil, setting a precedent and creating a facility readily available to future presidents wanting to rid themselves of a range of potentially dangerous actors.

The political reality is that closure of Guantánamo is unlikely to happen anytime soon, and if it did, it would do more harm than good. We should instead focus on finding places to transfer those cleared to leave the facility and, more important, on defining the end to the war.

In a recent speech, Jeh Johnson, then the Department of Defense general counsel, discussed a future “tipping point” at which Al Qaeda would be so decimated that the armed conflict would be deemed over. Statements from high level officials suggest that this point may be near. And as the United States pulls out of Afghanistan, there is an increasingly strong argument that the war against Al Qaeda is coming to a close. With the end of the conflict, the legal justification for the detentions will finally disappear.

At that point, the remaining men in Guantánamo can no longer be held without charge, at least not without running afoul of basic constitutional and international law prohibitions. Only then is there a realistic hope for meaningful closure, not by recreating a prison in the United States but through the arduous process of transferring, releasing or prosecuting the detainees left there.

In the meantime, we should keep Guantánamo open.


Jennifer Daskal is a fellow and adjunct professor at Georgetown Law Center.

She has served as counsel to the assistant attorney general for national security

at the Department of Justice and as senior counterterrorism counsel

at Human Rights Watch.

    Don’t Close Guantánamo, NYT, 10.1.2013,






Obama Disputes Limits

on Detainee Transfers Imposed in Defense Bill


January 3, 2013
The New York Times


WASHINGTON — President Obama set aside his veto threat and late Wednesday signed a defense bill that imposes restrictions on transferring detainees out of military prisons in Afghanistan and Guantánamo Bay, Cuba. But he attached a signing statement claiming that he has the constitutional power to override the limits in the law.

The move awakened a dormant issue from Mr. Obama’s first term: his broken promise to close the Guantánamo prison. Lawmakers intervened by imposing statutory restrictions on transfers of prisoners to other countries or into the United States, either for continued detention or for prosecution.

Now, as Mr. Obama prepares to begin his second term, Congress has tried to further restrict his ability to wind down the detention of terrorists worldwide, adding new limits in the National Defense Authorization Act of 2013, which lawmakers approved in late December.

The bill extended and strengthened limits on transfers out of Guantánamo to troubled nations like Yemen, the home country of the bulk of the remaining low-level detainees who have been cleared for repatriation. It also, for the first time, limited the Pentagon’s ability to transfer the roughly 50 non-Afghan citizens being held at the Parwan prison at Bagram Air Base in Afghanistan at a time when the future of American detention operations there is murky.

Despite his objections, Mr. Obama signed the bill, saying its other provisions on military programs were too important to jeopardize. Early Thursday, shortly after midnight, the White House released the signing statement in which the president challenged several of its provisions.

For example, in addressing the new limits on the transfers from Parwan, Mr. Obama wrote that the provision “could interfere with my ability as commander in chief to make time-sensitive determinations about the appropriate disposition of detainees in an active area of hostilities.”

He added that if he decided that the statute was operating “in a manner that violates constitutional separation of powers principles, my administration will implement it to avoid the constitutional conflict” — legalistic language that means interpreting the statute as containing an unwritten exception a president may invoke at his discretion.

Saying that he continued to believe that closing the Guantánamo prison was in the country’s fiscal and national security interests, Mr. Obama made a similar challenge to three sections that limit his ability to transfer detainees from Guantánamo, either into the United States for prosecution before a civilian court or for continued detention at another prison, or to the custody of another nation.

It was not clear, however, whether Mr. Obama intended to follow through, or whether he was just saber-rattling as a matter of principle. He made a similar challenge a year ago to the Guantánamo transfer restrictions in the 2012 version of the National Defense Authorization Act, but — against the backdrop of the presidential election campaign — he did not invoke the authority he claimed.

Several officials said that it was not certain, even from inside the government, what Mr. Obama’s intentions were. While the signing statement fell short of a veto, they said its language appeared intended to preserve some flexibility for the president to make a decision later about whether to make a new push to close the Guantánamo prison amid competing policy priorities.

Andrea Prasow, senior counterterrorism counsel at Human Rights Watch, which advocates closing Guantánamo, criticized Mr. Obama for not vetoing the legislation despite his threat to do so.

“The administration blames Congress for making it harder to close Guantánamo, yet for a second year President Obama has signed damaging Congressional restrictions into law,” she said. “The burden is on Obama to show he is serious about closing the prison.”

About 166 men remain at the prison.

Signing statements are official documents issued by a president when he signs bills into law that instruct subordinates in the executive branch about how to carry out the new statutes. In recent decades, starting with the Reagan administration, presidents have used the device with far greater frequency than in earlier eras to claim a constitutional right to bypass or override new laws.

The practice peaked under President George W. Bush, who used signing statements to advance sweeping theories of presidential power and challenged nearly 1,200 provisions over eight years — more than twice as many as all previous presidents combined.

The American Bar Association has called upon presidents to stop using signing statements, calling the practice “contrary to the rule of law and our constitutional system of separation of powers.” A year ago, the group sent a letter to Mr. Obama restating its objection to the practice and urging him to instead veto bills if he thinks sections are unconstitutional.

As a presidential candidate, Mr. Obama sharply criticized Mr. Bush’s use of the device as an overreach. Once in office, however, he said that he would use it only to invoke mainstream and widely accepted theories of the constitutional power of the president.

In his latest signing statement, Mr. Obama also objected to five provisions in which Congress required consultations and set out criteria over matters involving diplomatic negotiations about such matters as a security agreement with Afghanistan, saying that he would interpret the provisions so as not to inhibit “my constitutional authority to conduct the foreign relations of the United States.”

Mr. Obama raised concerns about several whistle-blower provisions to protect people who provide certain executive branch information to Congress — including employees of contractors who uncover waste or fraud, and officials raising concerns about the safety and reliability of nuclear stockpiles.

He also took particular objection to a provision that directs the commander of the military’s nuclear weapons to submit a report to Congress “without change” detailing whether any reduction in nuclear weapons proposed by Mr. Obama would “create a strategic imbalance or degrade deterrence” relative to Russian stockpiles.

The provision, Mr. Obama said, “would require a subordinate to submit materials directly to Congress without change, and thereby obstructs the traditional chain of command.”

    Obama Disputes Limits on Detainee Transfers Imposed in Defense Bill, NYT, 3.1.2012,






Volunteers at Ground Zero Now Face a Demand for Proof


January 1, 2013
The New York Times


On the day the terrorists flew into the World Trade Center, the Wu-Tang Clan canceled its meeting with a record mixer named Richard Oliver, so Mr. Oliver rushed downtown from his Hell’s Kitchen apartment to help out.

He said he spent three sleepless days at ground zero, tossing body bags. “Then I went home, ate, crashed, woke up,” he said. He had left his Dr. Martens boots on the landing outside his apartment, where he said they “had rotted away.”

“That was kind of frightening,” he continued. “I was breathing that stuff.”

After the Sept. 11 attacks, nothing symbolized the city’s rallying around like many New Yorkers who helped at ground zero for days, weeks, months, without being asked. Now Mr. Oliver, suffering from back pain and a chronic sinus infection, is among scores of volunteers who have begun filing claims for compensation from a $2.8 billion fund that Congress created in 2010.

But proving they were there and eligible for the money is turning out to be its own forbidding task.

The other large classes of people who qualify — firefighters, police officers, contractors, city workers, residents and students — have it relatively simple, since they are more likely to have official work orders, attendance records and leases to back them up. But more than a decade later, many volunteers have only the sketchiest proof that they are eligible for the fund, which is expected to make its first awards early this year. (A separate $1.5 billion treatment fund also was created.)

They are volunteers like Terry Graves, now ill with lung cancer, who kept a few business cards of people she worked with until 2007, then threw them away. Or Jaime Hazan, a former Web designer with gastric reflux, chronically inflamed sinuses and asthma, who managed to dig up a photograph of himself at ground zero — taken from behind.

Or Mr. Oliver, who has a terse two-sentence thank-you note on American Red Cross letterhead, dated 2004, which does not meet the requirement that it be witnessed or sworn.

“For some people, there’s great records,” said Noah H. Kushlefsky, whose law firm, Kreindler & Kreindler, is representing volunteers and others who expect to make claims. “But in some respects, it was a little bit of a free-for-all. Other people went down there and joined the bucket brigade, talked their way in. It’s going to be harder for those people, and we do have clients like that.”

As documentation, the fund requires volunteers to have orders, instructions or confirmation of tasks they performed, or medical records created during the time they were in what is being called the exposure zone, including the area south of Canal Street, and areas where debris was being taken.

Failing that, it will be enough to submit two sworn statements — meaning the writer swears to its truth, under penalty of perjury — from witnesses describing when the volunteers were there and what they were doing.

Proving presence at the site might actually be harder than proving the illness is related to Sept. 11, since the rules now allow a host of ailments to be covered, including 50 kinds of cancer, despite an absence of evidence linking cancer to ground zero.

A study by the New York City health department, just published in the Journal of the American Medical Association, found no clear association between cancer and Sept. 11, though the researchers noted that some cancers take many years to develop.

Unlike the original compensation fund, administered by Kenneth Feinberg, which dealt mainly with people who were killed or maimed in the attack, “This one is dealing with injuries that are very common,” said Sheila L. Birnbaum, a former mediator and personal injury defense lawyer, who is in charge of the new fund. “So it’s sort of a very hard process from the fund’s point of view to make the right call, and it requires some evidence that people were actually there.”

Asked how closely the fund would scrutinize documents like sworn statements, Ms. Birnbaum said she understood how hard it was to recreate records after a decade, and was going on the basic assumption that people would be honest.

In his career as a record mixer, Mr. Oliver, 56, has been associated with 7 platinum and 11 gold records, and 2 Grammy credits, which now line the walls of his condominium in College Point, Queens. He said he first got wind of the Sept. 11 attacks from a client, the Wu-Tang Clan. “One of the main guys called me: ‘Did you see what’s on TV? Because our meeting ain’t going to happen,’ ” he recalled.

Having taken a hazmat course after high school, he called the Red Cross and was told they needed people like him. “I left my soon-to-be-ex-wife and 1-year-old son and went down,” he said. “I came back three days later,” after surviving on his own adrenaline, Little Debbie cakes handed out to volunteers and bottled water. After working for three days setting up a morgue, he was willing to go back, he said, but “they said we have trained people now, thank you very much for your service.”

After the attacks, Mr. Oliver said, his income dropped from about $300,000 a year to almost nothing. “This town kind of shut down musically,” he said. Then he began having back problems that have put him on crutches for the last five years, pain and depression, which wrecked his marriage and his ability to work, he said. As a volunteer, he feels marginalized.

“The police, the firemen — they got their thing,” he said.

As proof of service, he has his two-sentence Red Cross letter, another letter from a doctor he worked with at ground zero, some pictures he took and a handwritten pass. “If that isn’t enough, then....” he said forlornly, trailing off.

If Terry Graves’s experience is any guide, Mr. Oliver will need to have those letters redone. Ms. Graves worked as a volunteer Spanish-language interpreter after Sept. 11, according to letters from two people who remembered seeing her at the Federal Emergency Management Agency’s Disaster Assistance Service Center on Worth Street. Ms. Graves used the letters to qualify for workers’ compensation, but the Sept. 11 fund bounced them back, saying they would accept only original sworn documents.

Her letters were written in 2007, and one signatory has since moved out of New York. “I don’t think I’m going to get this money,” she said. “By the time you prove it, you’re going to be dead.”

She also has a copy of a FEMA badge with her photograph on it. “I couldn’t come up with another witness if I tried,” she said. “I wasn’t there to socialize; I was there to do a job.”

Mr. Hazan, 41, used his expired Rockland County emergency medical technician’s card to wheedle his way past police lines to ground zero on Sept. 12, 2001.

Mr. Hazan said that he spent much of his one day at ground zero looking for someone to help, but that that did not mitigate his suffering. He is being treated at a federally financed World Trade Center Health Program at Mount Sinai Medical Center, and he has left his Web designing career to play bass guitar and piano for improvisational theater, which he says soothes his depression.

As proof of presence, he has a sworn letter from a Rockland County ambulance official saying they had met by chance at ground zero but offering no insight into what Mr. Hazan was doing there. The same official looked through his photographs and found one showing a man in a blue T-shirt with broad shoulders and a balding hairline, taken from behind. He is standing at the corner of Barclay and West Broadway, wearing an N-95 mask and looking at a collapsed building in a cloud of dust.

It was, Mr. Hazan said, the one time he was grateful for his distinctive receding hairline.

“I was only there for a day,” he said. “I am one of the lucky ones. I have a picture and a living witness.” Still, he added: “I don’t know if I’m going to qualify. You won’t know till the money turns up.”

    Volunteers at Ground Zero Now Face a Demand for Proof, NYT, 1.1.2013,




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