On March 9, The New York Times published an article detailing the inside story of the CIA investigation and eventual assassination of muslim cleric and US citizen Anwar al-Awlaki. The authors Mark Mazzetti, Charlie Savage, and Scott Shane write, “For what was apparently the first time since the Civil War, the United States government had carried out the deliberate killing of an American citizen as a wartime enemy and without a trial.” Collaborating with the officials responsible for Awlaki’s death, the authors provide the American people and the world with a legal justification for the controversial killing.

While purportedly offering transparency, the story has been met with outrage among human rights organizations. Since 2010 – when Diana Priest in the Washington Post first broke the story of the CIA kill list – the Obama administration has been severely criticized for bypassing judicial oversight in killing suspected terrorists.

A day after the article in The New York Times was published, the American Civil Liberties Union and the Center for Constitutional Rights issued a statement condemning the story as “the latest in a series of one-sided, selective disclosures that prevent meaningful public debate and legal or even political accountability for the government’s killing program, including its use against citizens.”

A US citizen

Anwar al-Awlaki was born in New Mexico to a family of the prominent Awalek tribe in Southern Yemen. At age seven, Awlaki moved back to Yemen with his family, where he would remain until he turned 19. He then returned to the United States for college and began serving as an imam – a muslim worship leader – at mosques in Denver, San Diego, and Washington.

Following the September 11 attacks, Awlaki was frequently consulted in the mainstream media as a Muslim authority with “the potential to bridge the gap between the United States and the worldwide community of Muslims,” Scott Shane said in an NPR interview.

This soon changed. In 2002, after growing resentment spurred by FBI raids of the Muslim community, Awlaki’s sermons grew conspiratorial. He warned Muslims never to trust a “kuffar,” or non-believer, and clarified that the American war against terrorism was actually a war against muslims.

Awlaki’s rage intensified when he was imprisoned for suspected terrorism in Yemen in 2006 – four years after he left the US for good. According to his blog, Awlaki was kept in solitary confinement for most of his 18 month imprisonment, a sentence supported by then Director of National Intelligence, John D. Negroponte. In an interview with CNN, Awlaki’s father confessed that when his son was released for lack of evidence, he noticed a change, and feared his son’s intensions had gone awry.

It was around this time, American officials believe, that Awlaki made the transition from an inspirational figure in Islamic jihad – and therefore protected by the first amendment – to an operational one.

According to the Times

The New York Times reports that it was only in 2009 that conclusive evidence was brought to bear on Awlaki’s operational role in terrorist activity. This information was apparently gleaned from the FBI’s cross-examination of the failed suicide bomber Umar Farouk Abdulmutallab. Previously, Awlaki was traced only in cautiously supportive emails with terrorists such as Nidal Malik Hasan, who opened fire at Fort Hood in Texas, killing 13 people.

Abdulmutallab, otherwise known as the underwear bomber, told FBI interrogators that a man named Abu Tarek had approved him for a suicide mission, assisted him with a martyrdom video, and instructed him to detonate his bomb in the United States. After this confession, Abdulmutallab declined to cooperate for a month. When he resumed speaking, according to The New York Times, he identified Abu Tarek as Awlaki.

Satisfied with the confession, the Department of Justice sought to verify the legality of killing an American citizen overseas. Lawyers David Barron and Martin Lederman were especially concerned about the United States Code statue 18 USC 1119, which prohibits Americans from killing other Americans overseas, unless in the battlefield. In 2010, Barron and Lederman drafted a 63 page memo, concluding that the government would be excused for killing Awlaki because of national defense. This logic was operative when the CIA fired a missile at Awlaki in 2011.

The problem of evidence

Contrary to CIA officials, human rights organizations and independent journalists are not satisfied with the evidence incriminating Awlaki. In The Guardian, Glenn Greenwald asserts that the statements obtained from Abdulmutallab – which indict Awlaki as operational – are dubious and should have been subject to courtroom analysis. This would clarify whether “they were simply the results of Abdulmutallab giving the government what they wanted – namely, statements that incriminated someone they wanted to kill – in exchange for favors as part of his plea agreement. It’s so basic, though the NYT seems not to have heard, that statements made by accused criminals in exchange for favors as part of a plea bargain are among the most unreliable.”

Likewise, on her blog, political author and government whistleblower Marcy Wheeler points to The New York Times’ uncritical acceptance of its sources. While, according to The New York Times, the underwear bomber merely disguised Awlaki under the pseudonym Abu Tarek, the courtroom documents reveal discrepancies.

According to his sentencing memo, Abdulmutallab did not explicitly identify Abu Tarek as Awlaki; rather, he acknowledged Awlaki as being one of the people, along with another man named Ibrahim Al Asiri, who performed some of the actions he previously attributed to Abu Tarek.

More problematically, the sentencing memo records Abdulmutullab’s attempt to subtract his statement about Alawki from his sentence, because it was part of a plea deal: “Defendant states that the objected-to paragraphs contain ‘information obtained during plea negotiations in this matter and cannot at this stage be used against him, for sentencing purposes.’”

Despite these ambiguities, the Department of Justice has firmly indicted Alawki as the instigator. In 2012 Wheeler wrote, “Back in October, the government was clear. ‘Abu-Tarak gave Abdulmutallab the direction’ to hit a US airliner over US airspace. But now, when they’re under pressure to justify killing Awlaki with no due process and trying to release the best case on that killing, their story has changed. Now, Awlaki gave that order.”

The problem of the United States Code

Still more troubling is The New York Times’ legal justification of the Awlaki killing, notwithstanding the statute 18 USC 1119, which so disturbed the lawyers Barron and Lederman.

The statute reads, “A person who, being a national of the United States, kills or attempts to kill a national of the United States while such national is outside the United States but within the jurisdiction of another country shall be punished as provided under sections 1111, 1112, and 1113.” As Kevin Jon Heller in Opinio Juris explains, this means “An American who kills an American outside of the United States is guilty of murder.”

In their 63 page memo, some of which was recently leaked in a summarized form as the “white paper,” Barron and Lederman argue that the President has the authority to kill a citizen overseas – bypassing the United States Code – as long as the President holds the citizen to be an imminent threat to the United States. Jameel Jaffer of the Civil Liberties Union writes, “The paper’s basic contention is that the government has the authority to carry out the extrajudicial killing of an American citizen if ‘an informed, high-level official’ deems him to present a ‘continuing’ threat to the country.”

The problem with this contention, according to Jaffer and other critics, is that it sidesteps any checks and balances, and gives full authority over life and death to a single high-level official.

The New York Times’ support for the logic governing the white paper is timely. Now that John Brennan – known to critics as Obama’s “assassination czar” – has just been appointed director of the CIA, The New York Times has given Brennan an ideological footing to continue past policy. Appointed in 2012 as the sole arbiter of government killings, Brennan has publicly stated, “President Obama’s approach to counter-terrorism is pragmatic, not ideological. It’s based on what works.”

According to Jesselyn Radack, former ethics adviser to the Department of Justice, the pragmatism of Brennan, and by implication The New York Times, does not hold up to basic ethical standards. In a pointed remark in the Daily Kos, Radack affirmed, “Allegations are not evidence. Allegations cannot be tested in a court of law because, well, the target is dead. So all we can do now is convict him in The New York Times.” As a problematic statement on Brennan’s policy, Awlaki’s posthumous conviction in The New York Times opens a chilling gap between pragmatism and ethics.