At the beginning of April, Muhanad Mahmoud al Farekh appeared in federal court in Brooklyn to face federal terrorism charges, seemingly out of nowhere. He had been detained by Pakistani authorities, then secretly spirited to New York to stand trial. U.S. agencies had been watching him for months, debating whether or not to kill the American citizen with a drone strike.
Loretta Lynch, the U.S. Attorney for the Eastern District of New York, issued a statement: “We will continue to use every tool at our disposal to bring such individuals to justice.” She did not add “until or unless I am finally confirmed by the Congress as attorney general.”
On Thursday morning, as Congress at last was set to vote on President Obama’s nominee, the president announced from the White House that a U.S. strike in January accidentally killed Warren Weinstein, an American USAID contractor being held hostage by al Qaeda, and another hostage, Giovani Lo Porto, an Italian citizen.
“Since 9/11, our counterterrorism efforts have prevented terrorist attacks and saved innocent lives, both here in America and around the world,” Obama said, continuing, “As president and as commander-in-chief, I take full responsibility … It is a cruel and bitter truth that in the fog of war generally and our fight against terrorists specifically, mistakes, sometimes deadly mistakes, can occur.”
Obama also announced he had directed a full review. The White House declined to say who would lead the review, but Lynch, who was confirmed just hours after Obama’s announcement on Thursday, is likely to play a key part.
The Senate voted 56 to 43 to confirm Lynch, who had waited more than 170 days to replace Eric Holder after he announced his retirement in September. Since her nomination in November, Congress’ refusal to confirm or reject her made lame-duck limbos out of her Eastern District, which is handling several high-profile federal terrorism cases; and out of the Department of Justice, which has helped shape U.S. national security strategy under the Obama administration and beyond him through legal determinations from counterterrorism to intelligence.
Now, Lynch and Holder will be forced to respond to what may be the biggest blowback to the Obama administration’s counterterrorism policy during his presidency, with one foot in the door and one out of it and an agency in transition caught in the middle.
What Obama did not mention in his speech was the additional revelation, included in a White House statement just before his speech, that the same strike killed another American, Ahmed Farouq, who the terrorist group claims was a “deputy emir” for al Qaeda in the Indian subcontinent, according to House Intelligence Committee Ranking Member Adam Schiff, D-Calif. The White House also said a separate strike likely had killed a third American, Adam Gadahn, a California man believed to be a prominent spokesman and propagandist for al Qaeda, Schiff said.
The strikes, the White House said, were conducted in accordance with counterterrorism guidelines, and based on extensive intelligence that indicated it was impossible to capture the terrorists targeted, but did not indicate any Americans, or hostages, were present.
Col. Steve Warren, a Pentagon spokesman, said later Thursday, ”The intelligence process is never an exact science…However our intelligence capabilities, we believe, are substantial, they are robust and we have generally great confidence in the ability of our intelligence personnel to gather the information that we need to both conduct operations that we conduct and much more importantly to protect the homeland.”
When political impasse over Obama’s executive action on immigration threatened to shut down the Department of Homeland Security just last month, lawmakers on both sides of the Congressional aisle railed against each other for holding national security hostage at such a critical time, though there would have been very little real impact to security. That refrain was little heard during the Lynch holdup, which Republicans used to protest what they called executive overstep by Obama, and as a forcing mechanism to pass an unrelated piece of legislation on human trafficking, despite no specific opposition to the U.S. attorney herself. While 10 Republicans ultimately backed Lynch, several suggested she agrees too readily with the president — setting an impossible and unprecedented bar for Cabinet-level nominations.
The blatant acknowledgement that Lynch has been used as a political football is particularly striking give the GOP’s intense dislike of her predecessor. But perhaps more importantly, both the Eastern District of New York and the Department of Justice have played an outsized role in national security under Obama. By holding up Lynch’s nomination, Congress has left both the federal district and the DOJ rudderless.
Obama has relied on DOJ under Holder for guidance and backing amid several of the most contentious security controversies during his administration. Part of the hesitation in using a strike to take out Farekh was the fallout from a CIA drone strike in Yemen in 2011 that killed Anwar al-Awlaki, a U.S. citizen and cleric accused of being an al Qaeda operative. Holder defended the move, arguing in a letter to the Senate Judiciary Committee that the extrajudicial killing of an American citizen was a last resort, but permissible if he or she presented “an imminent threat of violent attack against the United States” and capture was “not feasible.”
In her confirmation hearings, Lynch indicated she is likely to continue the robust national security role that Holder took on, even drawing fire from presidential contenders Sens. Ted Cruz, R-Texas, and Rand Paul, R-Kentucky, who rocketed into the spotlight with a filibuster over whether the government can use lethal force against an American citizen on American soil.
“With respect to an American citizen or anyone who seeks my opinion on joining ISIL or Al-Qaeda, my recommendation would be do not do it or you will face American justice,” Lynch told Sen. Lindsey Graham, R-South Carolina, in her January hearing. She said she was “comfortable” with the legal justification for lethal force against an American citizen, but added the Awlaki case illustrates the need to “use all of the tools available to combat this war.”
Graham told Defense One Wednesday, “I’m gonna vote for her … I think she would be a good attorney general on the terrorism front, so that’s one reason I want her in place.”
As Intelligence Committee Ranking Member Dianne Feinstein, D-California, pointed out during debate before the Senate voted to move Lynch’s nomination forward toward a final vote Thursday afternoon, the Eastern District “had led the nation in terrorism convictions among all U.S. Attorney offices since 2001,” including an al Qaeda plot to attack the New York subway system and others charged with providing material support to the Islamic State.
“I’m confident she’s going to be a very strong voice leading the Justice Department on issues of national security,” Feinstein said. “And I can only say I think, as those of us on the Intelligence Committee see … this becomes more important every day.”
As Sen. Claire McCaskill, D-Mo., herself a former prosecutor, put it, “She has prosecuted more terrorists than almost anybody on the face of the planet…The notion that this has occurred because she agrees with the man who selected her, I think everyone needs to understand what that means for the future if all of us embrace that kind of base politics in these decisions.”
The Farekh case may be one of the last brought by Lynch in the district where she has twice been confirmed by the U.S. Senate as U.S. attorney, but it has already reignited the debate over the U.S. policy on extrajudicial killings. And the revelations on Thursday will likely add fuel to the fire.
Critics of Obama’s drone policy say the Farekh case shows suspects can be captured and brought to federal court in the U.S.; members of Congress reportedly had been frustrated that the administration hadn’t moved faster to take Farekh out with a strike, according to the New York Times. Now lawmakers and the DOJ will be forced to grapple yet again with the risks posed by the lethal force option.
And they will do so having set the precedent that such national security considerations can take backseat to partisan politicking around executive appointments.
Marcus Weisgerber contributed reporting.