Related:

24 June 2014, NYT: Court Releases Large Parts of Memo Approving Killing of American in Yemen

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http://www.nytimes.com/2015/04/13/us/terrorism-case-renews-debate-over-drone-hits.html

APRIL 12, 2015

Terrorism Case Renews Debate Over Drone Hits

By MARK MAZZETTI and ERIC SCHMITT

WASHINGTON -- A Texas-born man suspected of being an operative for Al Qaeda stood before a federal judge in Brooklyn this month. Two years earlier, his government debated whether he should be killed by a drone strike in Pakistan.

The denouement in the hunt for the man, Mohanad Mahmoud Al Farekh, who was arrested last year in Pakistan based on intelligence provided by the United States, came after a yearslong debate inside the government about whether to kill an American citizen overseas without trial -- an extraordinary step taken only once before, when the Central Intelligence Agency killed the radical cleric [1] Anwar al-Awlaki in Yemen in 2011.

Mr. Farekh's court appearance also came as the Obama administration was struggling to fashion new guidelines for targeted killings. The decision to use an allied intelligence service to arrest Mr. Farekh has bolstered a case made by some that capturing -- rather than killing -- militant suspects, even in some of the world's most remote places, is more feasible than the orders for hundreds of drone strikes might indicate.

"This is an example that capturing can be done," said Micah Zenko, a scholar at the Council on Foreign Relations who studies counterterrorism strikes.

The Obama administration's discussions about the fate of Mr. Farekh, who used the nom de guerre [2] Abdullah al-Shami, began in earnest in 2012, and in the months that followed the C.I.A. and the Pentagon ramped up surveillance of his movements around Pakistani tribal areas.

Drones spotted him several times in the early months of 2013, and spy agencies used a warrant issued by the Federal Intelligence Surveillance Court to monitor his communications. The Pentagon nominated Mr. Farekh to be placed on a so-called kill list for terrorism suspects; C.I.A. officials also pushed for the White House to authorize his killing.

But the Justice Department, particularly Attorney General Eric H. Holder Jr., was skeptical of the intelligence dossier on Mr. Farekh, questioning whether he posed an imminent threat to the United States and whether he was as significant a player in Al Qaeda as the Pentagon and the C.I.A. described. Mr. Holder and his aides also thought it might be possible to capture Mr. Farekh and bring him to trial.

The discussions took place less than two years after the 2011 targeted killing of Mr. Awlaki, and Justice Department officials were sensitive to the criticism leveled against the department for approving that strike.

"Because he was an American citizen, we needed more information," said one former senior official. "Post-Awlaki, there was a lot of nervousness about this."

Another complicating factor emerged in May 2013, when the president imposed new rules for targeted killings and announced some of the rules in a speech [3] at National Defense University.

At the time of the speech, the White House also announced that four American citizens had been killed in drone strikes during Mr. Obama's time in office -- but that only Mr. Awlaki had been specifically targeted. The three others had been killed in strikes aimed at others.

In a classified order finalized at the time of Mr. Obama's speech, the White House directed that the Pentagon, rather than the C.I.A., should conduct lethal strikes against American citizens suspected of terrorism. That provision was designed, at least in theory, to allow government officials to speak more freely about any operation after it had occurred.

But the Pentagon has long been banned from conducting drone strikes in Pakistan, part of a 2004 deal with Pakistan that all such attacks be carried out by the C.I.A. under its authority to take covert action -- allowing Pakistan to publicly deny any knowledge of the strikes and American officials to remain silent.

This account is based in part on interviews with more than a half-dozen current and former senior American law enforcement, intelligence, military and counterterrorism officials, who spoke on condition of anonymity because of the pending criminal case. Spokesmen for the Justice Department and the C.I.A. declined to comment, as did Pakistani officials.

Ned Price, a White House spokesman, said: "As a general matter, the administration has made the long arm of American justice clear time and again. And the fact that the accused was successfully detained overseas and brought back to the United States to face trial is a testament to our persistence when it comes to pursuing those who would seek to harm the United States and its interests."

The debate over what to do about Mr. Farekh stalled, infuriating members of Congress. During a closed-door hearing of the House Intelligence Committee in July 2013, lawmakers grilled military and intelligence officials about why Mr. Farekh had not been killed.

"We've never seen a bigger mess," said Mike Rogers, the Michigan Republican who was the committee's chairman at the time, according to one person who attended the meeting.

Mr. Farekh's eventual arrest has given ammunition to legal experts who say that capturing suspects is a far more preferable option.

Jameel Jaffer, the deputy legal director for the American Civil Liberties Union, called the secret meetings about whether to kill an American citizen "chilling." Mr. Jaffer, who has sued the Obama administration to make public the legal arguments underpinning its targeted killing program, said it was "telling" that parts of the government advocated for the killing of Mr. Farekh even though capture turned out to be possible.

"Senior intelligence officials have assured the public that drone killings are a last resort," Mr. Jaffer said. "But the C.I.A. and Pentagon don't appear to have internalized that principle."

But many counterterrorism specialists say capturing terrorism suspects often hinges on unreliable allies. "It's a gamble to rely on a partner service to pick up the target," said Philip Mudd, a former senior F.B.I. and C.I.A. official.

Mr. Farekh, with a beard and pensive expression, was arraigned in federal court on April 2, but few details about his background are available publicly. American officials said he left Texas with his family when he was a young boy and spent most of his early life in  Jordan.

A Justice Department complaint unsealed [4] on the day he appeared in court said he had studied at the University of Manitoba. The complaint said he was radicalized in part by the online sermons of Mr. Awlaki before he and friends departed for Pakistan in March 2007.

Once in Pakistan, Mr. Farekh appears to have worked his way up the ranks of Al Qaeda, his ascent aided by marrying the daughter of a top Qaeda leader.

American officials said he became one of the terrorist network's planners for operations outside Pakistan, a position that included work on the production and distribution of roadside bombs used against American troops in Afghanistan.

Some published reports have said that Mr. Farekh held the third-highest position in Al Qaeda, but Americans officials said the reports were exaggerated.

His level in the Qaeda hierarchy remains a matter of some dispute. Several American officials said that the criminal complaint against him underplayed his significance inside the terrorist group, but that the complaint -- based on the testimony of several cooperating witnesses -- was based only on what federal prosecutors believed they could prove during a trial.

Mr. Farekh was arrested late last year by Pakistani security forces acting on intelligence provided by American spy agencies, United States officials said. The location of his capture is unclear, but Pakistani officials held him secretly for months, with American operatives occasionally feeding questions to his Pakistani interrogators.

Eventually, he was handed over to the United States and examined by the High-Value Detainee Interrogation Group, a team that questions terrorism suspects. He was then formally charged with conspiracy to provide material support for terrorism.

On the day Mr. Farekh appeared in court, Loretta E. Lynch, the United States attorney, released a statement saying, "We will continue to use every tool at our disposal to bring such individuals to justice."

Matt Apuzzo and Scott Shane contributed reporting.

[1] http://www.nytimes.com/2014/06/24/us/justice-department-found-it-lawful-to-target-anwar-al-awlaki.html

[2] http://www.nytimes.com/2014/02/28/world/asia/us-militant-hidden-spurs-drone-debate.html

[3] https://www.whitehouse.gov/the-press-office/2013/05/23/remarks-president-national-defense-university

[4] http://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/04/02/farekh-complaint.pdf