Image: Anwar al-Awlaki
Muhammad Ud-deen  /  AP file
Yemen says it will not hunt down Anwar al-Awlaki who has reportedly been added to the CIA's list of targets to be killed or captured.
msnbc.com news services
updated 9/14/2010 10:48:19 AM ET 2010-09-14T14:48:19

The Obama administration is considering filing the first criminal charges against radical cleric Anwar al-Awlaki in case the CIA fails to kill him and he is captured alive in Yemen.

The decision continues the White House's strategy of fighting terrorism both in court and on the battlefield.

Al-Awlaki, a U.S. and Yemeni citizen born in New Mexico, has inspired a wave of attempted attacks against the U.S. and has become al-Qaida's leading English-speaking voice for recruiting and motivating terrorists. Counterterrorism officials said al-Awlaki, since mid-2009, has become a key operational figure who selects targets and gives orders.

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Shortly after the failed Christmas Day bombing of a Detroit-bound U.S. airliner, which officials believe al-Awlaki had a hand in planning, the White House took the unprecedented step of authorizing the CIA to kill or capture him. A decision on criminal charges against him is expected in the next several weeks, officials said, speaking on condition of anonymity to discuss the deliberations.

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The Nigerian man charged with the attempted bombing, Umar Farouk Abdulmutallab, suggested in Detroit federal court Monday that he wanted to plead guilty to some charges, raising the possibility that his cooperation could form the foundation for charges against al-Awlaki.

Story: Alleged 'Underwear Bomber' suggests he wants to plead

The Obama administration has rewritten the nation's counterterrorism strategy, treating terrorism as both a wartime issue to be handled by the military and CIA, and a legal issue to be settled in court.

That has alternately angered both liberals and conservatives. Congressional Republicans have cast the administration as soft on terrorism for using criminal courts rather than military tribunals to prosecute suspected attackers. Civil liberties groups, meanwhile, have called lethal action against al-Awlaki unconstitutional.

Late last week, former heads of the 9/11 Commission that studied the 2001 attacks on New York and Washington presented a report they described as a wake-up call about the radicalization of Muslims in the United States and the changing strategy of al-Qaida and its allies.

No 'clear profile of a terrorist'
"The threat that the U.S. is facing is different than it was nine years ago" after the Sept. 11 attacks, said the report released by the Washington-based Bipartisan Policy Center.

The report said al-Qaida and its affiliates in Pakistan, Somalia and Yemen had minimally established an "embryonic" recruitment infrastructure in the United States.

It pointed to convictions last year of at least 43 American citizens or residents aligned with militant ideology, and high-profile cases of recruits who went abroad for training.

"In the past year alone the United States has seen affluent suburban Americans and the progeny of hard-working immigrants gravitate to terrorism," the report said. "There seems no longer any clear profile of a terrorist."

The report cited al-Awlaki and several others who grew up in the United States as examples of Americans who were increasingly forming part of the leadership of al Qaida and its allies.

Al-Awlaki is living in a mountainous region of Yemen, sheltered by his family and religious leaders who say he has no ties to terrorism. Yemeni officials have said they will not turn him over to the U.S. because, as a Yemeni citizen, he must be prosecuted there.

Yemen has been an unreliable U.S. partner when it comes to holding terrorists in prison, however, and charging al-Awlaki in the U.S. would make it easier for the Obama administration to demand he be turned over.

Such charges, however, would come with political and intelligence-gathering risks. Counterterrorism officials regard al-Awlaki as a terrorist operative, not just a preacher, but they have revealed few specifics. Charging al-Awlaki with having direct involvement in terrorism could require the U.S. to reveal evidence gleaned from foreign wiretaps or confidential informants.

Prosecutors' options
The best case scenario for the government would be for Abdulmutallab to plead guilty. He has already told the FBI that al-Awlaki was involved in the airliner bomb plan, and a plea deal would allow Abdulmutallab to become a witness against him. But Abdulmutallab, who fired his lawyers Monday and was given approval to represent himself, has yet to strike a deal and would probably seek a reduced prison sentence in exchange for his help.

Video: Bomber suspect to represent himself

Another option, given al-Awlaki's increasingly violent sermons and his collaboration with al-Qaida's propaganda efforts, would be charging him with supporting terrorism. But that charge carries only a 15-year prison sentence, leaving the administration open to questions about how the president can authorize the CIA to essentially impose the death penalty for such a crime.

Al-Awlaki had been under scrutiny for years by FBI agents in San Diego, where he lived in the late 1990s. He also lived in northern Virginia before the Sept. 11, 2001, terrorist attacks. Both areas are seen as prosecutor-friendly districts for national security cases. As a U.S. citizen, he cannot be prosecuted before a military commission.

If the Justice Department decides to charge al-Awlaki, it's likely he would not be indicted. Rather, charges are more likely to take the form of an FBI complaint. That's because an indicted suspect automatically gets the right to an attorney if he is captured, making it harder for authorities to question him.

The Justice Department used a similar strategy last week when it announced a criminal complaint against the self-proclaimed emir of the Pakistani Taliban, Hakimullah Mehsud. He is accused of planning a deadly December 2009 suicide attack on a CIA base in Khost, Afghanistan.

The Associated Press and Reuters contributed to this report.

Video: Radical cleric urges attack on U.S.

  1. Closed captioning of: Radical cleric urges attack on U.S.

    >>> yemeni clerk -- and the christmas day bomber. intelligence officials say this latest footage is a sign from al- qaeda that the u.s.-born cleric has moved to operational within that organization. michael isakoff is here. this is a big step. they didn't realize exactly how important he was before ft. hood and now, they're realizing he's not just inspiring these acts. he'll telling people what to do.

    >> he was on the radar screen of u.s. intelligence for some time. he has known to have had tied to the 9/11 hijackers, was vigorous vigorously investigated by the fbi, but never anything solid on him.

    >> and he was living here in the states.

    >> in northern virginia at one of the mosques here in northern virginia . left the country, went to yemen. has been known for some time as an inspirational figure for radicalized muslims, largely because he's fluent in english, but was never considered that important, certainly in the organizational structure of al- qaeda and arabian peninsula . was barely a major target of u.s. intelligence until late last year. now, with ft. hood, with his connections, still not entirely clear. he has sort of moved up the scale and what's really amazing is here he is, almost taunting the u.s. in this video. we've been after him, he's been the major target of u.s. intelligence . he's on the hit list . we're unable to find him. he's almost becoming the new osama bin laden , one of our top terrorist enemies who u.s. intelligen intelligence agencies can't find.

    >> it was the pr wing of al- qaeda that released the video, so that's a direct connection with al- qaeda . there may have been may not have a clear cut case before. and secondly, this is an american citizen targeted for assassination, which is a big step.

    >> and there's been a lot of debate. he is not under indictment by the u.s. what is the threshold of evidence you need against somebody to target a u.s. citizen for assassination. just coming back, al- qaeda and the arabian peninsula playing this video. i talked with gregory johnson , one of the top experts on yemen, said they are taking advantage of the prominence he has being given by the obama administration.

    >> hilt.

    >> they're feeding into them.

    >> exactly. every time he appears on the front page and every time we talk about him he gets more hits.

    >> right. his star has ascended because of the attention he is getting.

    >> michael isikoff , thank you very much. of course logon to blog.newsweek.com for the latest in declassified.

    >>> and what political story will

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