U.S. Attorney Defends Decision to Scrap Awlaki Arrest Warrant

Dec. 7, 2009 — -- U.S. Attorney David Gaouette defended the decision to rescind a 2002 felony arrest warrant for radical Islamic cleric Anwar Awlaki, saying that his office determined there was insufficient evidence to pursue the case.

As reported by ABC News, the warrant for Awlaki, an al-Qaeda recruiter and self-described "confidant" of alleged Fort Hood shooter Nidal Hasan, was rescinded a day before Awlaki was intercepted as a terror suspect at JFK airport in New York in October 2002. Authorities had to release him, and he soon left the country.

The warrant would have given terror investigators the right to hold Awlaki, who was on a terror watch list, on charges of felony passport fraud. "It was a determination of our office that we couldn't prove the case beyond a reasonable doubt and we asked the court to withdraw the complaint," Gaouette, U.S. Attorney for the District of Colorado, told ABC News. Gaouette, who in 2002 was the assistant U.S. attorney who supervised the Awlaki case, said he took responsibility for rescinding the warrant.

Gaouette also said that Awlaki's terrorism-related background had no bearing on the decision to drop the case. He said he could not continue with a case just "because someone has a bad reputation."

"There are 300 million people who would disagree with him," said Ray Fournier, the Diplomatic Security Service (DSS) agent who originally investigated the passport fraud case. Awlaki, who had met with three of the 9/11 hijackers while he was an imam at mosques in California and Virginia, had also been in touch with an associate of "the blind sheik," Omar Abdel Rahman, now serving in federal prison for seditious conspiracy.

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The cancellation of the warrant infuriated anti-terrorism investigators who were trying to put Awlaki under wraps, according to sources close to the case. Shortly after he was released from JFK, Awlaki left the U.S. for good and eventually settled in Yemen, where intelligence officials say he has become a leading recruiter for al-Qaeda. Awlaki has been named as the spiritual inspiration for terrorism plots in the U.S. and Canada and had extensive e-mail exchanges with Maj. Nidal Hasan, charged with 13 counts of murder and 32 counts of attempted premeditated murder in last month's mass shooting at Fort Hood, Texas.

"Investigators were aggressively trying to pin Awlaki down so they could work 9/11 and other terrorism cases against him, and that's why that passport fraud charge was so critical," said Paul Sperry of the Hoover Institution who first reported on the Awlaki arrest warrant in his book, "Muslim Mafia."

The Awlaki case began in 2002 when agents with the Joint Terrorism Task Force (JTTF) in San Diego began an intensive investigation of Awlaki because of his ties to two 9/11 hijackers who had attended his mosque in San Diego. Agents discovered that the U.S.-born Awlaki had falsely indicated on his 1990 Social Security number application that he had been born in Sana'a, Yemen. Because the statute of limitations had passed, agents could not charge Awlaki with social security fraud. However, when Awlaki used his Social Security number to apply for a U.S. passport in Denver several years later investigators believed he could be successfully charged with felony passport fraud because the alleged offense had occurred within the ten-year statute of limitations.

When the case was presented to the Denver U.S. Attorney's Office, prosecutors decided to pursue an arrest warrant, which was signed off on by a federal judge in June of 2002. According to the warrant, Awlaki "applied for the passport on November 18, 1993 using a social security number that he had obtained by fraud. His use of this number violates the terms and conditions as stated on a… application for a passport and constitutes fraud."

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If convicted, Awlaki could have faced 10 years in prison, though as a first offender, he most likely would have received a six-month sentence. Still, investigators say they thought it was worth it for a chance to detain and hold the radical cleric.

However, Gaouette says his office decided to rescind the warrant after it was discovered that Awlaki had somehow "corrected" his place of birth at a Social Security office in 1996, three years after he applied for the passport. Because it was now a valid Social Security number, Gaouette said he had no choice but to drop the case.

"It was a big factor," said Gaouette. "Our key witness, the Social Security Administration, wouldn't be able to testify that there was any fraud…we cannot ethically go forward on an arrest or an indictment or certainly a trial when we don't have sufficient evidence to prove the charge. "

But DSS agent Fournier, who initiated the passport fraud case, took issue with Gaouette's contention that there was insufficient evidence to proceed, saying, "It doesn't change the facts that when he executed the passport application he had a number that was based on fraudulent infomation, and that fact can never be changed." Fournier said that in his career at DSS he had helped obtain over 300 felony convictions for passport and visa fraud and that in his view, the Awlaki case was solid.

JTTF investigators in San Diego were "disappointed and shocked" when the warrant was rescinded according to a former agent who asked not be named. "This was a missed opportunity to get this guy under wraps so we could look at him under a microscope," said the agent.

Gaouette noted that a review of the case file showed that investigators did not raise any objections after his office notified them of the decision to cancel the warrant. However, Fournier says he personally flew to Denver from San Diego, at DSS expense, to express his outrage and to stress the importance of detaining Awlaki because of his terrorism ties. "The case was absolutely worth pursuing," said Fournier.

However, Gaouette said Awlaki's background had no bearing on the decision to drop the case. "That's not how we operate or any prosecutor's office operates," said Gaouette. "We don't present cases to the grand jury or present complaints to a magistrate judge because someone has a bad reputation or because an agent wants to put the screws to them."

"If he wants to say that, that's fine," responded Fournier. "But Awlaki is different, he is unique."

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