The Government’s Awlaki Story Does Not Pass the Laugh Test

In the early morning hours of October 10, 2002, Anwar al-Awlaki, the notorious al Qaeda operative, was detained by U.S. Customs agents when he arrived at JFK International Airport in New York City after a flight from Saudi Arabia. At the time, he was a prime suspect in the 9/11 attacks and had been placed on terrorist watch-lists. Nevertheless, the Bush Justice Department directed Customs to release him. That decision enabled Awlaki to continue his jihadist campaign against the United States until he was finally killed in Yemen last September, in an American drone attack.

For nearly a decade since Awlaki was permitted to go free at the airport, the government has maintained that he was released because an arrest warrant for him, based on a 1993 felony passport fraud charge, had been vacated before his arrival, due to insufficient evidence. The government has suggested, moreover, that sheer coincidence explained the dismissal of the fraud charge right before Awlaki showed up at JFK: just a random assessment that a case was too weak, made by prosecutors and investigators who were unaware of Awlaki’s imminent arrival.

Now, Fox’s Catherine Herridge breaks the news that the government’s story is untrue. In House testimony this week, a top FBI official admitted that the Bureau and federal prosecutors knew Awlaki was about to return to the United States before he arrived at JFK. Furthermore, it emerged at the House hearing that the passport fraud warrant had not been vacated when Awlaki was briefly detained. The warrant remained valid and pending; it could have been used to arrest him. Instead, the Justice Department intervened to “un-arrest” him. With apologies extended by federal agents to both Awlaki and the Saudi government representative conveniently on hand to assist him, the terrorist was sprung.

I would also throw this into the hopper: The Justice Department’s rationale for dismissing the warrant is fatally flawed. Awlaki should have been arrested and prosecuted on the passport violation in 2002. That would not just have been a worthy effort in its own right; it would have had the added benefit of giving terrorism investigators more time, and more leverage, to develop a convincing terrorism case against Awlaki and other suspects. Why the case was dropped is a question that deserves much more scrutiny. After all, the release at JFK marked the second time, in a matter of months, that Awlaki wriggled free despite the heavy cloud of 9/11 suspicion that hovered over him.

To be blunt, the government’s Awlaki story does not pass the laugh test.

It was always incredible to suggest, as the Justice Department has, that Awlaki’s release was the result of a series of remarkable coincidences. Until this week, the story went something like this: After obtaining a valid arrest warrant in Denver federal court, the FBI case agent and assistant U.S. attorney assigned to the matter decided, out of the blue, to review the file. It just happened to be the day before Awlaki tried to reenter the country. There was nothing going on in the case that called for a review at that time — Awlaki was out of the country, there was no urgency to file an indictment, and an indictment on the simple charge would have been easy to obtain once the time came. One would think the FBI and the U.S. attorney’s office in a major city would have more pressing matters to attend to. Yet, they undertook to scrub their evidence and concluded — to the astonishment of federal terrorism investigators then probing Awlaki in San Diego — that the passport fraud complaint they had only recently filed against Awlaki was too weak to stand.

Abruptly, they decided to dismiss it — not sleep on it, not think about what evidence might shore it up, not consider how the information they’d amassed might warrant new charges against Awlaki. No, they just dismissed the only existing charge against a pivotal 9/11 suspect — even though many other suspects had been held for weeks, without any charges at all, on “material witness” warrants.

The government has disingenuously represented that, with the warrant already purportedly “pulled” due to the latently discovered “weakness” of its passport fraud case, there was no legitimate basis to detain Awlaki when Customs agents unexpectedly encountered him at JFK in October 2002. Thus the agents simply had no choice but to release him into the waiting arms of his Saudi handler.

Enabling a Committed Jihadist

Prior to Awlaki’s killing last year, he was a key al Qaeda operative — a committed jihadist who, as an American citizen and gifted orator, could easily operate in the U.S. and influence young Western Muslims. Ms. Herridge reports that one study ties Awlaki to some 26 terrorism cases. For example, he was in regular contact for years with the Fort Hood jihadist, Nidal Hasan, before the latter killed 13 American soldiers and wounded dozens more in November 2009. Awlaki is also believed to have been complicit in the unsuccessful attempt by Umar Abdulmutallab to blow up a plane over Detroit just a month later, on Christmas Day. Much of this mayhem could have been prevented if the government had acted to stop Awlaki when opportunities to do so presented themselves in aftermath of the 9/11 attacks.

In March 2002, seven months before Awlaki was “un-arrested” at JFK airport, he was allowed to flee the country. He was a hot number at the time — and he knew it. Awlaki had been involved with several of the suicide-hijackers who had killed nearly 3,000 Americans on 9/11. FBI agents had grilled him repeatedly in the days after the attack, and, palpably, he had dissembled in describing his contacts with the terrorists. Yet no effort was made to stop him from going to Yemen.

The new Fox News report explains that the Justice Department learned sometime in 2002 that Awlaki was planning to return to the U.S. from Yemen. How the government knew this has not been revealed. We can recall, however, that the 9/11 attacks resulted in a significant stepping up of surveillance efforts, including NSA eavesdropping on terrorist communications that crossed our national boundaries. Given that Awlaki was a suspect in the most resource-intensive investigation ever conducted by the federal government, and in light of his inclusion on terrorist watch-lists, it is unsurprising that the government was alert to his movements.

What is surprising — shocking, actually — is that, as Awlaki was making his way from Riyadh to New York that October, the Justice Department was actually arranging to facilitate his movements, rather than resolving to stop him.

That mindset is hard to fathom when one considers what was known of Awlaki’s background at the time. His suspected terror ties significantly predated 9/11. Though born in New Mexico, he was raised in Yemen, Osama bin Laden’s ancestral home and long a jihadist hotbed. Awlaki later relocated to the U.S., serving for years, in various American mosques, as an imam steeped in Islamic supremacist ideology.

In the late Nineties, he worked for an ostensible Islamic charity that the government later described as a “front organization … used to support al Qaeda and Osama bin Laden.” Moreover, as Susan Schmidt has reported for the Washington Post, Awlaki edged onto the FBI’s radar screen in 1999, when the Bureau developed information that he had been visited by both a publicly unidentified associate of Omar Abdel Rahman (the “Blind Sheikh,” sentenced to life-imprisonment in 1996 on terrorism charges), and an al Qaeda “procurement agent” who had obtained a satellite phone for bin Laden’s use in Afghanistan. The investigation was closed as to Awlaki due to what the government describes as a lack of evidence.

San Diego: the Jihad’s Saudi Sanctuary

By 2000, Awlaki was living in San Diego. There, under extraordinarily suspicious circumstances, the first two 9/11 hijackers to reach the U.S., Khalid al-Midhar and Nawaf al-Hazmi, moved into the neighborhood at the urging of a shadowy Saudi named Omar al-Bayoumi.

The Saudi connection is salient. Fifteen of the 19 suicide-hijackers were Saudis; al Qaeda was (and is) the recipient of prodigious Saudi-sourced funding; and Saudi Arabia is the world’s leading propagator of the Islamic supremacist ideology that ignites jihadist terror. Consequently, the 9/11 attacks were a great embarrassment to both the U.S. government and the Saudi regime — which jointly make much ado about their purportedly strong alliance. It is thus worth observing that the full extent of Saudi participation in the 9/11 atrocities has never been adequately probed and publicized. Nor has the nature of Saudi influence, which inspires such curious American government reticence whenever the Kingdom is found fomenting anti-Americanism. Indeed, to the great frustration of several low-ranking investigators, the U.S. government allowed many Saudis to be whisked out of the United States after the 9/11 attacks, even though many were suspected of complicity in al Qaeda’s jihad, and even though federal agents had not had nearly enough time to investigate their possible involvement.

Bayoumi, too, is safely back in Saudi Arabia. He actually left the U.S. several weeks before 9/11 — in July 2001. He is a native Saudi who worked for years in the Kingdom’s defense ministry before moving to the U.S. in 1994. The defense ministry continued to pay him a salary while he held a series of no-show jobs in the San Diego area. For over a year prior to 9/11, he also received an extra stipend of approximately $3,000 per month from Princess Haifa bint Faisal, the wife of the Saudi ambassador to the United States, Bandar bin Sultan. It was during those months that he provided essential logistical support to Midhar and Hamzi.

On February 1, 2000, after briefly visiting the Saudi consulate in Los Angeles, Bayoumi met the two eventual hijackers at a restaurant. Patently, it appears to have been a prearranged rendezvous — notwithstanding Bayoumi’s counter story: He just happened to drive up from San Diego that day to address a visa issue — with a government that was paying him — when, completely by chance, he ran into Midhar and Hamzi, struck up a fast friendship with the taciturn duo, and urged them to come live in his neighborhood.

The pair obviously needed a support network: they were strangers to the United States and spoke virtually no English. Within three days of meeting Bayoumi, they made it to the Islamic Center of San Diego. There, Bayoumi received them, quickly found them an apartment, co-signed their lease, helped them open a bank account (with money they’d received from 9/11 mastermind Khalid Sheikh Mohammed), and facilitated the payment of their deposit to the real estate agent. (See 9/11 Commission Report, p. 219.)

Bayoumi also introduced Midhar and Hamzi to the local Muslim community, which prominently included Awlaki, who was then the imam at Masjid Al-Ribat al-Islami — the “Rabat Mosque.” As Paul Sperry has reported for the New York Post, despite his Yemeni lineage, Awlaki had important Saudi contacts of his own. He worked for the Saudi embassy as a tour guide for Hajj pilgrimages. In San Diego, as they prepared for their role in the suicide-hijackings, Midhar and Hamzi frequented the Rabat mosque. There, they met regularly with Awlaki in a small anteroom on an upper floor.

Dar al-Hijra Days

As I recounted in The Grand Jihad, Awlaki gravitated out of San Diego in mid-2000, finally landing in Virginia in early 2001. Not much is known of his whereabouts in the interim, although a report cited in his Wikipedia biography relates that, by his own account, he “travel[ed] overseas to various countries.” We do know that when he settled in Virginia, he was appointed imam at the Dar al-Hijra mosque in Falls Church — one of the most important Saudi-underwritten Muslim Brotherhood hubs in the United States.

The mosque was established in 1991, on real estate purchased by the North American Islamic Trust — a Brotherhood organization cited as an unindicted co-conspirator in the Justice Department’s Hamas terrorism-financing prosecution, the Holy Land Foundation case. The Islamic Affairs Department of the Saudi embassy in Washington chipped in towards the $6 million construction costs of the mosque complex.

It was from the home of one of the mosque’s founders, Ismail Elbarasse, that the FBI seized the Brotherhood’s infamous 1991 “explanatory memo” from which I drew the title of my book, The Grand Jihad. In that internal communique, Brotherhood leaders proclaimed that their mission in America is a “grand jihad” aimed at “eliminating and destroying the Western civilization from within and sabotaging its miserable house[.]” (See the memo here, scroll halfway down, where an English translation follows the Arabic original.) Awlaki’s predecessor as imam, Mohammed al-Hanooti, described Dar al Hijra as “the greatest example in sacrifice, execution, and in carrying out the jihad that Allah calls for” — adding that this jihad would “give us the victory over our tyrannical enemies … the infidel Americans and British,” as well as “the infidel Jews.”

Remarkably, the State Department would later showcase Dar al Hijra in “Eid in America,” a fawning video said to depict how Islam is typically lived in our country.

Awlaki and Dar al-Hijra were a perfect fit. After he settled in, Hamzi and Hanjour followed along from Mesa, Arizona — where Hanjour had taken a refresher course in piloting aircraft. With Awlaki’s intercession, the mosque helped the soon-to-be suicide-hijackers find housing. Bank records show that Hanjour had his utility deposit transferred from his former residence to Dar al-Hijra. After the 9/11 atrocities, the mosque’s fax number was found in the Hamburg apartment of Ramzi bin al-Shibh. Along with Khalid Sheikh Mohammed and Mohamed Atta, bin al-Shibh was among the principal 9/11 plotters.

Coincidentally, during these same early months of 2001, while Awlaki was meeting with the 9/11 jihadists, he also struck up a friendship with the eventual Fort Hood jihadist, Nidal Hasan. After Awlaki presided over the funeral of Hasan’s mother, the two began a years-long relationship, mainly conducted by email. It turns out that, prior to the Fort Hood massacre, those communications were known to the FBI and the Defense Department. They were dismissed as insignificant, despite mounds of evidence about Awlaki and Hasan’s unabashed allegiance to Islamic supremacism.

In August 2001, Awlaki made a quick trip back to San Diego to pick up a few things he’d left behind. He stopped to bid farewell to a former neighbor, Lincoln Higgie. As Higgie recalled the encounter for the New York Times, he urged Awlaki, of whom he’d grown fond, to stop by and visit whenever he came to town. Awlaki, however, pregnantly replied, “I don’t think you’ll be seeing me. I won’t be coming back to San Diego again. Later on, you’ll find out why.”

Just a few weeks later, on September 11, 2001, Hanjour, Hamzi and Midhar, along with two others, hijacked American Airlines Flight 77 and flew it into the Pentagon — one of four airplanes turned into jihadist weapons of mass destruction that fateful day.

In the dragnet that followed, Awlaki was interrogated by the FBI four different times. He implausibly told agents he was shocked to realize that some of the suicide-hijackers seemed to have followed him from San Diego to Virginia.  Awlaki denied having had contact with Hamzi and Hanjour at Dar al-Hijra. Though he admitted having seen Hamzi in San Diego, Awlaki risibly claimed that could not remember anything they might have discussed — or even Hamzi’s name. (See Paul Sperry’s report, as well as the 9/11 Commission Report at p. 221.) According to a lengthy New York Times profile of Awlaki, interviewing FBI agents nevertheless concluded that “his contacts with the hijackers and other radicals were random, the inevitable consequence of living in the small world of Islam in America.” Not everyone drank so deeply the government’s see-no-Islam Kool-Aid. A number of investigators fiercely disagreed, as would several staffers on the 9/11 Commission.

Dropping the Fraud Charge

Against this backdrop, Ms. Herridge’s new report is just mind-blowing.

As noted above, the government not only had intelligence indicating that Awlaki was coming back to the United States in October 2002; it also had a pending charge against him. The Justice Department’s oft-repeated claim that the charge had been dismissed by the time Awlaki tried to reenter the country is simply not true. Nor is it true, as the government has maintained, that there was a compelling legal reason to vacate the arrest warrant.

To grasp this requires some background about the charge.  Awlaki had defrauded the United States in 1990. He returned to the U.S. from Yemen that year to study engineering at Colorado State University. He thus found himself in need of a Social Security number. In applying for one, the New Mexico native falsely stated that his place of birth was Yemen. Why? Because he was seeking — successfully — a  taxpayer-funded scholarship available only to foreign students.

By mid-2002, when the government realized Awlaki had made this false statement in 1990, it was too late to charge Social Security fraud, which has a 10-year statute of limitations. But it turned out that, in 1993, Awlaki had decided it would be useful to have a U.S. passport. In applying for the passport, he used the fraudulently obtained Social Security number. Such deception constitutes passport fraud, a felony offense as to which the statute-of-limitations had not yet run.

Consequently, in June 2002, three months after Awlaki fled to Yemen, the U.S. attorney’s office in Denver swore out a criminal complaint and the federal court issued an arrest warrant. It is a standard law-enforcement strategy to file such a charge in court when dealing with a fugitive: a court-authorized arrest warrant, which is lodged in various governmental and international databases, can trigger a suspect’s detention if he is stopped for some reason during his travels. It also provides a legal basis for the United States to seek the suspect’s extradition if he is detained in another country.

It was based on that warrant, lodged in a U.S. Customs Service database, that Awlaki was detained at JFK International Airport in New York City when he returned to the country, on a flight from Riyadh, Saudi Arabia, in the early morning hours of October 10, 2002. Customs agents, however, released Awlaki based on the representation of an FBI agent, Wade Ammerman, that “the warrant … had been pulled back.”

This assertion, as well as the Justice Department’s offered rationale for dismissing the passport fraud warrant, are fraught with duplicity.

To begin with, the warrant had not been “pulled back” at the time of Awlaki’s detention at JFK. The prosecutor and the FBI may have made an application for dismissal from the court, but no such application had been granted. The warrant was still in effect. It was not dismissed by a judge until later that day, at the earliest. Of course, had the warrant actually been vacated at the time of Awlaki’s arrival, as the government has been claiming, it would almost certainly have been withdrawn from the Customs database. And if, as the government claims, the FBI told Customs that the warrant had been “pulled,” the protocol would have been for Customs to ask for, and the FBI to supply, easily accessible paperwork showing dismissal of the warrant by the court. There was no such paperwork because the warrant had not been dismissed. Customs appears to have released Awlaki based not on a court dismissal but on the FBI’s say-so.

Secondly, that say-so was based on an untenable analysis of the passport fraud case. According to David Gaouette, the prosecutor then in charge of terrorism cases in Denver (who was later promoted to U.S. attorney), the case was weak because (a) Awlaki is a U.S. citizen who was entitled to a social security number and a passport; and (b) even if he lied on his original Social Security application, he ultimately “corrected the record.” Neither of these contentions withstands scrutiny.

First, entitlement to a government benefit is not a defense to the commission of fraud in obtaining that benefit. Awlaki did not misrepresent himself as a Yemeni national out of accident or mistake; he intentionally lied on his Social Security application in order to defraud the government out of scholarship money. Had the government made a timely discovery of Awlaki’s deception, he would not only have been prosecuted for Social Security fraud but for defrauding the scholarship program, as well. The fact that he was actually entitled to a social security card would in no way have excused his willful deception in the application process. Similarly, it is no defense to presenting a fraudulent passport application that one would be entitled to the passport if the application were truthful.

Second, the claim that Awlaki “corrected the record” is specious. In 1995, after he had completed his engineering studies and gotten the full benefit of fraudulently derived scholarship money, Awlaki, having apparently lost his Social Security card, applied for a replacement card. This time, he accurately indicated that he’d been born in New Mexico. He did not “correct the record” — which would have been tantamount to reporting his earlier fraud at a time when it was still prosecutable. In fact, as Ms. Herridge reports, the record has not been corrected: Fox obtained the relevant Social Security records under the Freedom of Information Act, and no correction is indicated. Obviously, Awlaki was not alerting the Social Security Administration in 1995 that he had provided false information in 1990. He was simply applying for another card, as those who misplace their cards often do. No doubt he hoped no one would notice the discrepancy in his representations about his place of birth — with a sprawling government bureaucracy, that is a pretty safe bet.

In any event, even if we pretend that Awlaki was trying to correct the record in good faith, he did not do so until two years after he had deceptively applied for the passport by using the fraudulently obtained Social Security number. By then, the passport fraud was already a completed crime. The later “correction of the record” is irrelevant — to analogize, you’re still guilty of bank robbery even if you try to pay the money back two years later.

When Awlaki was detained at JFK airport on October 10, 2002, there was a live warrant for his arrest and every valid reason to press ahead with the case against him. If, down the road, a defense lawyer thought he could make the “correct the record” gambit fly, the prosecutor could have opposed that in court — that’s what prosecutors do. There was no reason to dismiss the case at that point.

Furthermore, in the 9/11 investigation, dozens of less consequential suspects than Awlaki had been detained by the government on material witness warrants, even though there were no pending charges against them. Some of those suspects were held for weeks. Yet with Awlaki, as to whom there was a plausible felony charge, the government erred on the side of releasing him rather than getting him off the street. Indeed, even if one were to buy the government’s flawed rationale for dismissing the passport fraud charge, there appears to have been no consideration of detaining Awlaki as a material witness to compel his testimony before the grand jury, or of trying to make a case against him over the preposterous statements he had made to the FBI agents who interrogated him in the days after 9/11.

In letting Awlaki go, was the government acting on the misguided hope of using him as an informant? Was Awlaki given special consideration because the Saudis intervened on his behalf? Was his release just a monumental screw-up? Congress must continue to press for the answers to these questions. The evidence convincingly suggests that Anwar al-Awlaki was complicit in the killing of nearly 3,000 Americans on 9/11. Then, in the nine years after the government sprung him from detention at JFK Airport, to go off with his Saudi government helper, he did immense damage in his jihad against our country. The American people deserve to know why he was “un-arrested.”