Sometimes, the United States will simply indict a low-priority individual but then do little else. Adam Gadahn -- a senior al Qaeda spokesman and advisor to Ayman Al-Zawahiri -- is perhaps the best example of this today. The Justice Department indicted him in 2005 for "providing material support" for al Qaeda, a broad charge regularly used in terrorism cases. In 2006, Gadahn was charged with treason, the first American so-charged in over 50 years. Yet these seemingly strong actions belie an obvious limit: Gadahn is outside U.S. and allied control, and his arrest does not appear to be an operational priority, though officials would certainly welcome it should it occur.
7. The Plausibility of Capture
If the suspect is someone officials care about enough to take action against, they face another question: can they catch him? Capture operations are difficult and dangerous, and like targeting operations, they require knowing exactly where the suspect will be at the right time. Authorities might not tolerate Gadahn, for example, if they were able to locate him in a place where they could conduct a capture operation with tolerable risks to U.S. military or covert forces.
We know of no post-9/11 case in which authorities have launched an overseas capture operation against a U.S. national, though there have been several cases -- for example, John Walker Lindh and Yasser Hamdi -- in which U.S. nationals have been swept up along with other captured enemy forces. Still, Attorney General Eric Holder specifically included the question of whether capture was "implausible" as a deciding factor in a speech addressing the appropriate times to use lethal force on U.S. nationals overseas. Following Holder's rubric, any person captured would necessarily be routed into the domestic criminal justice system.
8. The Operations Question
U.S. officials draw a sharp distinction between propagandists like Gadahn and people like Padilla or even the DC-Five, who planned or were potentially directly involved in operations. In theory, it is operators who matter: words do not kill, or at least not directly, while someone willing to pick up a gun or plant a bomb leaves little doubt about his bloody plans.
Propagandists, to some degree, are also protected under U.S. law. Glorifying jihad and saying that Americans fighting in Iraq and Afghanistan, or even living ordinary lives stateside, deserve death, is not in itself a crime. So even Anwar al-Awlaki, who inspired Americans and Western Muslims in general to take up jihad, was not aggressively targeted until he was linked to attacks on U.S. airlines and aviation targets in the United Kingdom -- thus going from "propagandist" to "operator."
In practice -- though not in law -- this line is questionable. Awlaki's biggest success was inspiring Nidal Malik Hassan, who is charged with shooting 13 Americans at Fort Hood in 2009 -- the deadliest act of terrorism on U.S. soil since 9/11. Awlaki himself did not play an operational role, but by inspiring Hassan, his propaganda proved lethal. Even more importantly, al Qaeda itself sees propaganda as at the core of its operations. Osama bin Laden himself told Mullah Omar, the Afghan Taliban leader, that 90 percent of his battle would be fought in the media.