Good News Out of Yemen

Anwar al-Awlaki

The last smile?


Within a space of 24 hours, American-born radical imam Anwar al-Awlaki was telling al-Jazeera about an e-mail inquiry from Nidal Malik Hasan asking if it was ok to kill his fellow American troops. In the same interview, al-Awlaki was mocking US intelligence. Now, it appears he is probably dead, killed with as many as 30 of his cohorts in an air strike in Yemen. While we don't have the final details as yet, this appears to be a big success, and whoever carried it out is to be congratulated.

One issue that surrounds the al-Jazeera interview is how does this statement from al-Awlaki impact the charges against Hasan insofar as premeditation is concerned. It is dicey because on the surface, it appears to be a hearsay statement. I am a little rusty on my conspiracy law, but the drug conspiracy law that we used in DEA (21 USC 846)had a provision called the "exception to the hearsay rule". That meant that a statement made during the course of a conspiracy by one co-conspirator that implicated another co-conspirator could be used in court against the latter. As an example, if an undercover agent was negotiating a drug purchase with suspect A, and during the course of the negotiations, suspect A indicated that his source of supply was suspect B, that statement could be testified to by the undercover agent in court against suspect B. I stress that the conspiracy must still be in progress. Once suspect A is arrested, any statement he makes to law enforcement against suspect B can only be used if suspect A testifies to it. Of course, no defendant could be convicted solely on this piece of evidence.

The next question would be whether al-Awlaki was actually a co-conspirator in Hasan's killing spree in any legal sense. A lot would depend on which intercepts the government has and what al-Awlaki said to Hasan. Interesting legal questions that may keep some lawyers busy in the coming months.