Taking Anwar al-Awlaki alive would have presented a difficult challenge for U.S. government prosecutors seeking a terrorism conviction, legal experts say.
For one, the New Mexico-born al-Awlaki, as a U.S. citizen, would not be eligible for trial by a military tribunal at Guantanamo Bay, Cuba, where scores of foreign terrorism suspects are awaiting trial. The law establishing the commission system stipulates non-U.S. citizens only.
Criminal defendant al-Awlaki would have had more rights during a trial in a federal civilian court, which could have become for him an avenue to gain classified information on the war and a soapbox for his anti-West al Qaeda propaganda.
“Most of the stuff they would have on him would involve sensitive sources and methods, the kind of information that makes it very difficult, though not impossible, to conduct a public trial,” said Charles Gittins, a prominent defense attorney specializing in military law.
Military prosecutors in tribunal cases may introduce and use evidence that a civilian judge could rule inadmissible because the accused was not read his Miranda rights to remain silent and have an attorney.
Tough interrogation tactics also might prompt a civilian judge to rule a confession inadmissible, whereas a military judge would say it is appropriate.
Experts believe that in weighing whether to attempt a capture al-Awlaki, the Obama administration must have considered both the risk to U.S. military personnel as well as the challenges of convicting him someday.
“I think it’s pretty easy to understand why they didn’t take him alive. Would you want to deal with the hassle of trying to put him on trial, an American citizen that has gotten so much press for being the target of a CIA kill order? That would be a nightmare. The ACLU would be crawling all over the Justice Department for due process in an American court,” said a former military intelligence officer who worked with special operations troops to hunt down high-value terrorism targets.
Added Mr. Gittins: “The prospect of public trial in federal court was likely a consideration when the administration decided to kill al-Awlaki rather than seek to capture him with the assistance of the Yemeni government.”
The former intelligence officer said “mark my words” that the military and CIA do have plans to capture the top tier of al Qaeda in the Arabian Peninsula (AQAP), the Yemen-based faction for which al-Awlaki served as director of overseas operations.
Unlike al-Awlaki, the leaders are foreigners who could be interrogated for intelligence about AQAP and be tried in military war crimes courts. The U.S. killed al-Awlaki in an airstrike Friday near Yemen’s Jawf province.
“Mark my words. We will see a physical raid against his top deputy to capture him,” the former officer said.
Al-Awlaki himself, who used native English to incite American Muslims to kill, presumably would have been a rich source of intelligence on a group that the administration says is the most dangerous al Qaeda threat to the U.S. homeland.
Frank Gaffney, a former senior Pentagon official in the Reagan administration, said new restrictions on how terrorism suspects are questioned “has crippled our ability to interrogate them.”
“Killing them is better than leaving them at large, of course, but it doesn’t alter the fact that, by so doing, we are denying ourselves even the possibility of gleaning potentially decisive information,” Mr. Gaffney said.
Eugene Fidell, a defense attorney who teaches military justice at Yale Law School, said he believes the difficultly of inserting troops in Yemen’s rugged terrain was the only factor in the administration decision to kill, not capture, al-Awlaki.
“It’s hard to insert human beings in that part of the world. I think it’s as simple as that,” Mr. Fidell said.
He said federal district courts have shown they can move quickly in terrorism cases.
“I don’t think it’s at all clear it would have been a long, drawn-out proceeding,” he said. “With the proper judge, things can move along. Frankly, I think the district courts are much more capable of expediting action than any military commission. Experiences teaches that.”
Critics of civilian trials for war criminals point to the case of Ahmed Khalfan Ghailani, an al Qaeda operative facing 285 charges in the 1998 bombings of U.S. embassies in Kenya and Tanzania that killed 224 people.
Ghailani’s defense team nearly persuaded a civilian New York jury to acquit him of all charges. The jury found him guilty of only one count: conspiracy.
Still, the one count was enough for the district court judge to sentence him to life in prison.
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