In the Justice Department there is a file. In that file is a memo. What that memo says is a total my
stery. Well, maybe not a total mystery. One of the pieces to that mystery has (probably) revealed itself.
First, some background. Anwar Al-Awlaki was killed Friday, September 30, 2011 presumably by a hellfire missile fired from a UAV. His death sparked a controversy because he was (1) killed in Yemen, which is not necessarily a theater of war under the AUMF; (2) was a member of AQAP, which is not necessarily “associated forces” under the AUMF; and most importantly, (3) he was born in Las Cruces, New Mexico making him a full citizen of the United States and protected by the Constitution’s command for Due Process. These questions all assumed another yet unanswered
The Obama Administration first claimed victory and then claimed that they had a perfectly reasonable legal rationale for why the assignation was proper under International and Domestic law. They have never released that rationale, contained in a memo from the Office of Legal Counsel.
Fast forward to February 10, 2012. Umar Forouok Abdulmutalla (The Underwear Bomber) plead guilty and was sentenced to life in prison on February 17, 2012. During the sentencing process, the Department of Justice prepared for the court a sentencing memo. In the “Factual Appendix” to that memo, at pages 12-14, we learn more about Al-Awlaki’s operational role in AQAP:
“Once in Yemen, defendant visited mosques and asked people he met if they knew how he could meet Awlaki. Eventually, defendant made contact with an individual who in turn made Awlaki aware of defendant’s desire to meet him. Defendant provided this individual with the number for his Yemeni cellular telephone. Thereafter, defendant received a text message from Awlaki telling defendant to call him, which defendant did. During their brief telephone conversation, it was agreed that defendant would send Awlaki a written message explaining why he wanted to become involved in jihad. Defendant took several days to write his message to Awlaki, telling him of his desire to become involved in jihad, and seeking Awlaki’s guidance. After receiving defendant’s message, Awlaki sent defendant a response, telling him that Awlaki would find a way for defendant to become involved in jihad. Thereafter, defendant was picked up and driven through the Yemeni desert. He eventually arrived at Awlaki’s house, and stayed there for three days. During that time, defendant met with Awlaki and the two men discussed martyrdom and jihad. Awlaki told defendant that jihad requires patience but comes with many rewards. Defendant understood that Awlaki used these discussions to evaluate defendant’s commitment to and suitability for jihad. Throughout, defendant expressed his willingness to become involved in any mission chosen for him, including martyrdom – and by the end of his stay, Awlaki had accepted defendant for a martyrdom mission. Defendant left Awlaki’s house, and was taken to another house, where he met AQAP bombmaker Ibrahim Al Asiri. Defendant and Al Asiri discussed defendant’s desire to commit an act of jihad. Thereafter, Al Asiri discussed a plan for a martyrdom mission with Awlaki, who gave it final approval, and instructed Defendant Abdulmutallab on it. For the following two weeks, defendant trained in an AQAP camp, and received instruction in weapons and indoctrination in jihad. During his time in the training camp, defendant met many individuals, including Samir Khan Ibrahim Al Asiri constructed a bomb for defendant’s suicide mission and personally delivered it to Defendant Abdulmutallab. This was the bomb that defendant carried in his underwear on December 25, 2009. Al Asiri trained defendant in the use of the bomb, including by having defendant practice the manner in which the bomb would be detonated; that is, by pushing the plunger of a syringe, causing two chemicals to mix, and initiating a fire (which would then detonate the explosive). Awlaki told defendant that he would create a martyrdom video that would be used after the defendant’s attack. Awlaki arranged for a professional film crew to film the video. Awlaki assisted defendant in writing his martyrdom statement, and it was filmed over a period of two to three days.The full video was approximately five minutes in length. Although Awlaki gave defendant operational flexibility, Awlaki instructed defendant that the only requirements were that the attack be on a U.S. airliner, and that the attack take place over U.S. soil. Beyond that, Awlaki gave defendant discretion to choose the flight and date. Awlaki instructed defendant not to fly directly from Yemen to Europe, as that could attract suspicion. As a result, defendant took a circuitous route, traveling from Yemen to Ethiopia to Ghana to Nigeria to Amsterdam to Detroit. Prior to defendant’s departure from Yemen, Awlaki’s last instructions to him were to wait until the airplane was over the United States and then to take the plane down
That may not be wholly satisfactory (maybe it is, since none of the usual suspects are saying anything) it is certainly something more concrete. Whether this increases calls for the Administration to answer all of the remaining legal questions, or not, remains to be seen.