A new video from al-Qaeda in the Arabian Peninsula appears to undercut the Obama administration's claim that Anwar al-Awlaki was the "head of external operations" for AQAP. The 39-minute video was posted to the internet on Saturday, just two days before the Second Circuit Court released a legal memo justifying Awlaki's killing by a CIA drone in September 2011.
Despite its release date, the video doesn't appear to be an attempt to pre-empt the Obama administration's memo. In fact, the video has little to do with Anwar al-Awlaki. Instead it focuses on the life of Said al-Shihri, a former Guantanamo Bay detainee who rose to become the deputy commander in AQAP before dying as a result of wounds suffered in a U.S. drone strike in late 2012.
The video says that it was Shihri — not Awlaki — who was "responsible for external operations against America." For years, the Obama administration has argued the opposite, claiming that Awlaki was directing AQAP's efforts against the U.S., including the failed underwear bomb on an airliner over Detroit on Christmas Day 2009.
On the day Awlaki was killed, Obama called him "the leader of external operations for al-Qaeda in the Arabian Peninsula" and said he "directed" the 2009 attack. The video appears to refute both claims, giving credit to Shihri, the former Guantanamo Bay detainee.
Halfway through the video there is a clip of AQAP leader Nasir al-Wihayshi embracing Umar Farouk Abdulmutallab, the underwear bomber in the Christmas Day attack, and whispering in his ear as a narrator reads that the attack was conducted "under the direct supervision of (Shihri) and a number of his brothers in the section in charge of external operations."
If true this would call into question the underlying intelligence that the Obama administration used to support its legal justification for killing Awlaki, a U.S. citizen, without trial or any judicial review.
The memo released on Monday redacted the intelligence section. But it makes clear that it is relying on this intelligence section — the first 11 pages of the document — to reach its conclusion that Awlaki is "a leader" of AQAP and a "continuing and imminent threat." Written on July 16, 2010, more than 14 months before the strike, the memo explains how the administration can kill Awlaki without violating either the Fourth or Fifth amendments, or even the due process clause of the Constitution, which states that no person shall be "deprived of life, liberty or property without due process of law."
Given the enormous constitutional issues at stake — from presidential power to protections for U.S. citizens — the memo has spawned a great deal of legal commentary. Much of that has focused on things like what exactly the US. means when it terms something an "imminent threat" or whether capture might have been feasible. But there has been little discussion of the underlying intelligence, largely because no one outside a select few "decision makers" in the government has seen it.
The video from AQAP is the first indication that the intelligence may be mistaken. U.S. intelligence agencies, of course, have made errors before. Most notably in Iraq, where the intelligence community believed Saddam Hussein was actively pursuing nuclear weapons.
Almost no one would argue that Anwar al-Awlaki was a good man. He openly and repeatedly advocated for the killing of Americans. And he even may have had a hand in the airline plot. But what if he didn't? What if the intelligence was wrong? What if, as the new video suggests, he was only a propagandist?
If he was not the leader of "external operations" for AQAP would the U.S. still have considered him a "continuing and imminent threat," someone who had to be killed without any judicial review?
An earlier version of this story misidentified the person embracing the Christmas Day bomber in the video. It is Nasir al-Wihayshi, not Said al-Shihri. Thank you to Kevin Jackson for pointing out the error.