Anwar Awlaki and the Power of Arrest

Anwar Awlaki is very bad news.  He is a cleric who has a history of advising people who later commit mass murder.  He met with three of the hijackers before the thousands of murders of 9/11; he was a confidant and e-mail correspondent with Nidal Hassan, who murdered and maimed dozens of soldiers at Ft. Hood; and it is now suspected that he was the recruiter of Umar Farouk Abdulmattulab, who yesterday attempted to murder 300 people over the skies of Detroit.

Very bad news (AP Photo)

Very bad news (AP Photo)

In 1990, he also mis-stated the city of his birth on application for a U.S. social security number.  Now, that may sound as trivial as Jeffrey Dahmer tearing a tag off his mattress, but it’s not quite so meaningless.

Joint Terrorism Task Force investigators discovered his false statement in 2002, after the statute of limitations has passed for social security fraud.  But they also discovered that in 1993, he had used the social security number he had fraudulently obtained, in order to obtain a United States passport.  The statute of limitations for passport application fraud had not passed.  Therefore, in June 2002, the investigators convinced the U.S. Attorney’s office in Denver to file a criminal complaint against Awlaki, which it did.  It also applied for, and obtained, an arrest warrant for Awlaki for passport fraud.

Awlaki attempted to enter the U.S. four months later on a flight arriving at JFK International Airport, and was seized at the airport.  But there was a problem: the arrest warrant had been rescinded the previous day, at the request of the same U.S. Attorney who had obtained it.  Awlaki was released.  Alerted by his airport seizure that he was being targeted, he left the United States and settled in Yemen where, among other things, he recruited for Al Qaeda.

Why was the arrest warrant rescinded?

The U.S. Attorney, David Gaouette, had discovered that in 1996, three years after applying for his passport, Awlaki had corrected his mis-statement on his social security application.  The Social Security Administration now considered Awlaki’s social security number valid.  Therefore, according to Gaouette, the SSA would not testify that Awlaki had an invalid social security number, and without its testimony, Gaouette could not prove beyond a reasonable doubt that Awlaki held a passport obtained fraudulently.  

Gaouette may or may not have been right that he could not obtain a conviction for passport fraud; for purposes of this discussion, let’s assume that he was.  The question is: should Gaouette have asked that the arrest be rescinded?  The answer to that question is not so easy. 

One straightforward answer is: yes.  If you don’t have, and can’t get, the evidence necessary to convict, then an arrest warrant should be rescinded.  

But it is a basic nugget of constitutional criminal procedure that the standard for arrest is probable cause, which is a considerably less exacting standard than beyond a reasonable doubt.  Therefore, if Gaouette’s assertion is that he needed evidence of a crime sufficient to convict Awlaki in order to arrest him, that is simply wrong.  On the other hand, a principal justification for allowing arrests based upon mere probable cause is that the State believes it can develop evidence sufficient to convict the arrestee.  If that isn’t true – and it wasn’t in Awlaki’s case – then perhaps the arrest power should not be used.  After all, the court issuing the warrant relies on the State’s good faith assertion that arrest is now warranted, and by implication that conviction is at least somewhat likely to result.

But that’s a very academic answer, and in the real world of law enforcement, these niceties are not always observed, sometimes with good reason.  The power to arrest is often used for purposes other than obtaining the conviction of the arrestee for the crime for which he’s been arrested; often, the State wants to interrogate him in order to obtain information about other crimes, or even about non-criminal activities.  The cause of arrest, in other words, is a pretext.    

The FBI desperately wanted to arrest Awlaki on a pretext so that it could interrogate him — and, as it admits, not about passport fraud.

Often, we criticize law enforcement for arresting people based on pretexts.  Gaouette might be lauded for adhering to the letter and spirit of the law.  Now, with famously accurate hindsight, Gaouette can expect to face intense criticism for not allowing Awlaki to be arrested based on a pretext, so that the FBI could interrogate him.

Now it’s your turn: what should Gaouette have done, and why?

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4 Responses

  1. Jack says:

    I would have let the arrest warrant stand, based on the reasonable possibility that the correction of the false statement was itself part of the pattern of criminal activity.

  2. george cotz says:

    I applaud this AUSA with integrity and a respect for the Constitution; lately, I have read about too many who seemed to believe that the means justified the ends. If all that prosecutors and the FBI knew about him was that he had talked to people who later did terrible things–nothing more– there was clearly no probable cause. The principle upheld by the AUSA was far more important than whatever shreds of evidence about criminal activity the FBI might have obtained.

  3. Perhaps the agents who arrested Awlaki at JFK should have checked that they had a valid warrant before they grabbed him.

  4. Jake says:

    Even better, put Awlaki or one of his obscene disciples on a planeload of lawprofs and let them blow it up. That might open a few eyes among the law professoriate, despite the overwhelming odds to the contrary.