"In June 2002, the U.S. Attorney's Office for the District of Colorado accepted on its face an affidavit for a criminal complaint submitted by a Diplomatic Security Service (DSS) agent in San Diego alleging a false statement in an application for a passport by Anwar Al-Awlaki.

"The passport application was made on November 18, 1993, at a post office in Fort Collins, Colorado. As the U.S. Attorney's Office reviewed the Awlaki case in preparing for presentation before a grand jury for an indictment, the federal prosecutor assigned to handle the matter determined that additional investigation was required.

"In the original DSS affidavit in support of a criminal complaint, the San Diego DSS agent alleged that on June 6, 1990, Awlaki had lied on an application for a social security number, allegedly falsely listing his place of birth. Awlaki was born in Las Cruces, New Mexico, even though on the social security number application he listed his place of birth as Yemen. Awlaki then allegedly used the Social Security number on his application to renew his passport. As a U.S. citizen, Awlaki was entitled to a Social Security number and the renewal of his passport.

"At the time of the original DSS investigation, the statute of limitations regarding the alleged Social Security false statement regarding his place of birth had expired. After the criminal complaint was filed, further investigation was required to ensure that there was sufficient evidence to support a conviction in this case. That investigation, conducted by a Denver DSS agent, and outlined in a DSS report, revealed that, in 1996, Awlaki had contacted the Social Security Administration to request that his place of birth on his social security application be changed from Yemen to New Mexico.

"The Social Security Administration made the requested change long before the criminal investigation started in September 2001. As such, the U.S. Attorney's Office learned during the subsequent investigation that the Social Security Administration would testify only that Awlaki was entitled to a social security number, that the number was valid, and that their records indicated that he corrected his place of birth.

"This fact eliminated the crucial piece of evidence required to obtain a conviction. Based on that fact, the U.S. Attorney's Office met with the original DSS agent from San Diego on October 8, 2002, notifying him that they could not, as matter of law or ethics, seek a grand jury indictment against Awlaki.

"On that same day, October 8, 2002, after that meeting, according to a DSS report, the San Diego DSS agent contacted a DSS clerk in California, requesting that the clerk access the National Crime Information Center (NCIC), a computerized index of criminal justice information, and withdraw the arrest warrant from the system. A motion was later filed and was signed by the Magistrate Judge, dismissing the complaint.

"Dismissing a complaint is fairly common practice, done for a variety of reasons, including in cases where the state files charges in lieu of federal prosecution, or where a witness becomes unavailable, or where new unrelated charges are filed.

"In short, there was no legal basis to bring a passport fraud prosecution in this matter given the evidence uncovered by the Denver DSS agent, and had there been a legal basis for prosecution, it is unlikely that under the sentencing structure put in place in 2001 such a charge would have led to any, let alone significant time in prison.

"Furthermore, the penalties usually associated with passport or immigration fraud — loss of U.S. immigration status — were not available, given the fact that this individual was a U.S. citizen."