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In the private offices and sealed corridors of Washington's terror-fighting apparatus, the fate of Kamal Derwish is certain. A United States citizen, he is a casualty of America's war on terror.
In Derwish's hometown of Lackawanna, N.Y., on the shore of Lake Erie just south of Buffalo, there is no gravesite to visit nor obituary to read. His 1988 Honda Accord Sedan has been quietly sold -- one of the only signs Derwish is not expected home.
Officially, his death is shrouded in national security secrecy.
"It's not really anything that I can confirm, I mean, whether something did happen to him or not," said Peter Ahearn, the special agent in charge of the Federal Bureau of Investigation's Buffalo, N.Y. field office and the man once in charge of tracking down Derwish.
But despite government reticence to discuss it, Derwish's demise raises moral and constitutional concerns about America's war on terror.
By most accounts, Derwish was a Muslim fundamentalist. Government investigators go further, saying he was a "card carrying member of Al Qaeda" and disciple of Osama bin Laden. But Derwish was also an American, afforded the same due process that all citizens have under the Constitution.
The war on terror, however, has changed many aspects of America's justice system, especially for those who, like Derwish, are suspected of involvement with terrorist organizations.
Shortly after the Sept. 11 attacks, President Bush secretly authorized lethal covert action to be taken against members of Al Qaeda, according to published reports.
By the time this authorization, called a presidential finding, was granted, a group of Al Qaeda trainees had already returned to the United States from the Al Farooq terrorist training camp in Afghanistan. The group, all American citizens and natives of Lackawanna, N.Y., was recruited by Kamal Derwish. They would later be called the "most dangerous terror cell in the [United States]," by intelligence officials.
According to members of the upstate New York community, the recruits, ranging in age from 21 to 36, were captivated by Derwish's rhetoric. While Lackawanna, N.Y. was home to 3,000 Yemeni Muslims, few of them practiced the strict version of Islam Derwish fervently preached. The young men craved Islamic knowledge and were awestruck by Derwish, whom one follower called a "music man of religion."
Derwish was born in Buffalo, N.Y. in 1973. His family left their Lackawanna home to return to Yemen when he was five years old. After his father was killed in a car accident, Derwish went to live with relatives in Saudi Arabia where he was raised and educated.
U.S. intelligence sources say the Saudi government deported Derwish in 1997 for alleged extremist activities. He spent a year in Yemen before heading to back to his hometown of Lackawanna in 1998.
Friends and acquaintances characterize Derwish as friendly and soft-spoken, alluring and charismatic. Soon after his return to Lackawanna, Derwish became involved in the town's Muslim community. He volunteered at the local mosque and began giving Dars, or religious lectures. He preached against listening to popular music, watching television, carousing with women and decorating walls with pictures, according to those who knew him.
Derwish soon began holding gatherings at his apartment for small groups of young men after evening prayers. At one point the meetings swelled to as many as 20 followers, most of whom were in their late teens and twenties.
Derwish was a skilled mentor, say those who knew him, often mixing religion with leisure.
"We hung out sometimes. We went to eat. We wrestled a lot. You know, he taught me a few things about Islam," said A.J. Ahmed, a self-described "very good friend" of Derwish.
Over the next three years, Derwish remained active in the Lackawanna community. He made occasional trips back to the Middle East, once in 1999 to get married in Yemen.
When he returned again to the United States in the spring of 2000, Derwish began discussing a religious pilgrimage abroad and encouraged several members of the community to consider making the trip. The journey had wide appeal, although the real destination was an Al Qaeda training camp in Afghanistan.
"I was hungry for knowledge of the religion itself," said Sahim Alwan, one of Derwish's recruits, currently awaiting sentencing of up to 10 years in prison for attending the camp.
"I really was, you know, starting to learn my religion," said Mr. Alwan in an interview conducted at the Buffalo Federal Detention Center in Batavia, N.Y. "and I didn't see, I never really saw the mujahedeen part of it."
During April and May 2001, the Lackawanna recruits left the Buffalo suburb for Pakistan. The men, traveling in two groups, eventually made their way into Afghanistan and to the Al Farooq training camp. Derwish, who had gone ahead to make arrangements, guided some of his followers to the camp himself. During the six-week training program, most of the men received weapons training and learned combat tactics. Some even met personally with Osama bin Laden.
While the men were still in the camp, an anonymous letter was sent to the F.B.I's Buffalo field office from a member of the Lackawanna Yemeni community. The letter said that "terrorists" had come to Lackawanna "for recruiting the Yemenite youth" and that a group of men had gone to train with bin Laden in Afghanistan. It was then that the FBI first began to develop a rudimentary biography of Kamal Derwish.
After the 9/11 attacks, the joint terrorism task force at the FBI in Buffalo ballooned from one agent to 25. Still, information about Kamal Derwish's activities in Lackawanna and his radical views was slow to emerge. The men that returned from the camp denied having been in Afghanistan when confronted, and Derwish had yet to emerge as the clear leader. But after an associate of Derwish was captured in Afghanistan in teh fall of 2002, sent to Camp X-Ray in Guantanamo Bay, Cuba and interrogated, a clearer picture of the recruitment effort in Lackawanna emerged. In May 2002, more information trickled in from other intelligence agencies.
According to officials at the FBI, the Central Intelligence Agency had developed a link between Derwish and Al Qaeda. Agents learned he had received advanced weapons training in Afghanistan and fought with Muslim rebels in Bosnia in the mid-nineties. They also had intelligence of communication between Derwish and both Saad bin Laden, son of the terrorist leader, as well as Tawfiq bin Atash, one of the planners of 2000 bombing of the U.S.S. Cole.
In addition to locating Derwish's whereabouts, the government's main concern quickly became Derwish's ongoing links to Lackawanna. After leaving the training camp in Afghanistan, Kamal Derwish vanished. But according to sources, FBI wiretaps in Lackawanna revealed that Derwish was making "assessment calls" from the Middle East to check in on the newly returned trainees.
However, in late 2002, almost two months after arresting six of his recruits, the U.S. government did locate Derwish. On Nov. 3, Derwish, 29, was traveling through a barren stretch of Yemen's Ma'rib desert with six companions -- all suspected Al Qaeda members. Tipped off by Yemeni security agents that a suspected planner of the USS Cole bombing was in the vehicle, the CIA was silently trailing the group with an unmanned aircraft remotely operated from an airbase believed to be in the nearby country of Djibouti. As the vehicle Derwish was riding in drove through an isolated section of highway, the Predator drone aircraft launched a Hellfire missile, destroying the vehicle, and killing six of the men including Derwish. A seventh man escaped, according to Yemen's minister of interior.
Yemeni government officials immediately traveled to the scene with armed guards and a criminal laboratory. They found Derwish's body, as well as those of his companions, still burning. A United States passport found nearby was later used to identify Derwish, according to news reports.
Although the Bush administration would not acknowledge the operation directly, the Yemeni government said weapons, ammunition, radio equipment and traces of explosives were found in the destroyed vehicle.
News of the operation quickly made its way around the world.
As with many details surrounding the Yemen strike, it remains unclear whether Derwish had been deliberately targeted or even if the U.S. knew he was in the vehicle when it was fired upon.
Regardless, the Bush administration has reportedly given itself the legal authority to use "extreme measures," including the targeted killing of terrorist suspects, whether Americans or foreigners. The authority rests, in part, on the premise that the United States is at war with terrorism, making terrorists "enemy combatants" and therefore lawful targets under the Hague Convention and recognized laws of war, according to legal experts.
Human Rights Watch, a private advocacy group, did not criticize the operation that killed Derwish, saying that the alleged target, Qaed Salim Sinan al Harethi, also known as "Abu Ali," fit the Bush administration's definition of an enemy combatant. They also said that there was apparently no "reasonable law enforcement alternative" to the attack.
However, the group did warn in its "2003 World Report" that the Yemen strike could create a "huge loophole in due process protections worldwide."
"It would leave everyone open to being summarily killed anyplace in the world upon unilateral determination by the United States that he or she is an enemy combatant," the group wrote.
Justifying its use of extreme measures and targeted killings, the Bush administration maintains there is ample precedent for its use of lethal force against Al Qaeda, during peacetime and wartime alike.
In a 1989 legal memorandum clarifying President Ford's 1976 ban on political assassination, a military attorney wrote that enemy combatants are "liable to attack at any time or place, regardless of their activity when attacked."
The author, Colonel W. Hays Parks, USMCR (Ret.), presented several examples including the intentional killing of a Japanese admiral during World War II. When American intelligence learned of the admiral's travel itinerary in 1943, an Army Air Corps P-38 was sent to down the admiral's aircraft.
And during the Korean War, the U.S. Navy bombed a military conference in North Korea killing 500 senior North Korean and Chinese military officials.
The U.S. has conducted similar operations in peacetime as well. In 1916, President Woodrow Wilson dispatched 5,000 soldiers to hunt down the Mexican outlaw Pancho Villa.
More recently, the U.S. has cited Article 51 of the United Nations Charter, which affords a country the right of self-defense. In 1998, President Clinton ordered air strikes aimed at Osama bin Laden and his Al Qaeda training camps in Afghanistan.
But the death of Kamal Derwish represents the first public instance of an American citizen killed by the U.S. government in the course of its hunt for Al Qaeda. The attack in Yemen sets a new precedent, whether Derwish was killed intentionally or as the result of collateral damage.
"A U.S. citizen has rights -- whether he is living in Springfield, Illinois, or he is living in Saudi Arabia," said Dale Watson, head of counterterrorism for the FBI from 1997 to 2002.
But for Watson and many other Americans, due process rights may be tempered by the need to protect the United States from clear and present dangers.
"Does it bother me, that U.S. citizens get killed? You know, I mean, let's face it. If U.S. citizens like to go and fight with the Taliban," said Mr. Watson. "and they come back and then they get killed -- that's their free world choices they made. That doesn't bother me."
James Sandler is a field producer for New York Times Television.
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