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."
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JTTF investigators in San Diego were "disappointed and shocked" when the warrant was rescinded according to a former agent who asked not be named.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."