In an interview with Adam Serwer of The American Prospect, Ken Gude of the Center for American Progress says that the September 14, 2001 congressional Authorization to Use Military Force in response to 9/11 provides the Obama administration with the legal authority to launch the extra-judicial killing of an American citizen:
“There is much debate about how broadly both the Bush and Obama administrations have interpreted [the Authorization to Use Military Force], a concern that I share, but this instance is not one of those cases,” Gude says. “It cannot plausibly be argued that Awlaki, who is mentioned repeatedly in the 9/11 Commission report as having assisted the 9/11 hijackers, is not a person who aided the 9/11 attacks.”
But the evidence the 9/11 Commission report presents about Awlaki is far more fragmentary than Gude suggests. Awlaki’s possible role in the attacks is discussed in chapter 7 of the report, “The Attack Looms.” Basically, when hijackers Nawaf al-Hazmi and Khalid al-Mihdhar arrived in San Diego in mid-2000, they attended a mosque the American citizen Awlaki ministered at. This is what the commission says on page 221 of the first-edition text:
Another potentially significant San Diego contact for Hazmi and Mihdhar was Anwar Aulaqi, an imam at the Rabat mosque. Born in New Mexico and thus a U.S. citizen, Aulaqi grew up in Yemen and studied in the United States on a Yemeni government scholarship. We do not know how or when Hazmi and Mihdhar first met Aulaqi. The operatives may even have met or at least talked to him the same day they first moved to San Diego. Hazmi and Mihdar reportedly respected Aulaqi as a religious figure and developed a close relationship with him.
When interviewed after 9/11, Aulaqi said he did not recognize Hazmi’s name but did identify his picture. Although Aulaqi admitted meeting with Hazmi several times, he claimed not to remember any specifics of what they discussed. He described Hazmi as a soft-spoken Saudi student who used to appear at the mosque with a companion but who did not have a large circle of friends.
Aulaqi left San Diego in mid-2000, and by early 2001 had relocated to Virginia. As we will discuss later, Hazmi eventually showed up at Aulai’s mosque in Virginia, an appearance that may not have been coincidental. We have been unable to learn enough about Aulaqi’s relationship with Hazmi and Mihdha to reach a conclusion.
Both future 9/11 hijackers made their way to the Dar al Hijra mosque in Falls Church, where Awlaki had again taken up religious service. Page 229:
Aulaqi had moved to Virginia in January 2001. He remembers Hazmi from San Diego but has denied having any contact with Hazmi or [fellow hijacker Hani] Hanjour in Virginia.
At the Dar al Hijra mosque, Hazmi and Hanjour met a Jordanian named Eyad al Rababah. Rababah says he had gone to the mosque to speak to the imam, Aulaqi, about finding work. At the conclusion of services, which normally had 400 to 500 attendees, Rababah says he happened to meet Hazmi and Hanjour. They were looking for an apartment; Rababah referred them to a friend who had one to rent. Hazmi and Hanjour moved into the apartment, which was in Alexandria.
Some FBI investigators doubt Rababah’s story. Some agents suspect that Aulaqi may have tasked Rababah to help Hazmi and Hanjour. We share that suspicion, given the remarkable coincidence of Aulaqi’s prior relationship with Hazmi. As noted above, the Commission was unable to locate and interview Aulaqi.
The pattern of behavior is doubtlessly suspicious and the coincidence cries out for further investigation. But it’s not the same as tying Awlaqi to the 9/11 plot. In a footnote, the 9/11 Commission reveals that Awlaqi had come under FBI investigation in 1999 and 2000 after it learned the imam “may have been contacted by a possible procurement agent for Bin Laden.” It determined that he knew anti-Israel extremists, including some with ties to Hamas. But “none of this information was considered strong enough to support a criminal prosecution.”
Awlaki, we now know, is himself an extremist, and possibly tied to al-Qaeda in Yemen or beyond. But is this the level of connection to the 9/11 attack that can justify the execution of an American citizen without due process, according to the 2001 Congressional authorization? This is what that authorization empowers:
That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 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.
Even “aided” is a stretch in Awlaki’s case. The 9/11 Commission suspected it, and details the basis for reasonable suspicion. But it lacked the basis to reach any such conclusion.