In 2008 Barack Obama campaigned to end Bush-era policies that, he said, created a false choice between our safety and our ideals. Now that the war in Iraq is over and the war in Afghanistan is winding down, there is no indication the liberal constitutional-law professor will become a peacenik president—or even pull back on some of his more aggressive counterterrorism measures.
For the first time in more than 40 years, Democrats hold the advantage over Republicans on national security. Obama has achieved that distinction by escalating the use of drones and ordering the execution of suspected terrorists, including American citizens. Those policies have led Sarah Khan to sue the Department of Defense and the CIA for the September 30, 2011 death of her 25-year-old son, Samir.Saudi native Samir Khan became a naturalized citizen after he moved as a child to Queens with his family. By most accounts he was a normal teen until the summer of 2001, when he attended a weeklong summer camp sponsored by the fundamentalist but nonviolent Islamic Organization of North America. The experience turned the religiously indifferent teen into a zealot. A few months later the September 11 attacks made him a radical. By the time his family relocated to Charlotte, North Carolina three years later, Khan had morphed into a jihadist committed to waging war against those he considered enemies of Islam.
Khan holed up in his parents' north Charlotte basement, publishing anti-American and pro–Al Qaeda screeds. As his writings became more popular, he attracted the attention of federal authorities yet miraculously never landed on the no-fly list. In October 2009 he left Charlotte for Yemen, ostensibly to teach English. Once there, Khan fell off the radar. He resurfaced during the summer of 2010 as editor of Inspire, an online magazine that sought to recruit American Muslims to join the anti-U.S. jihad.
A year later Khan was killed by a U.S. drone strike on his convoy about 90 miles east of the Yemeni capital of Sanaa. Khan's family took the government to task in a written statement that read in part, "Our late son Samir Khan never broke any law and was never implicated in any crime. The Fifth Amendment states no citizen shall be 'deprived of life, liberty or property, without due process of law,' yet our government assassinated two of its citizens. Was this style of execution the only solution? Why couldn't there have been a capture and trial? Where is the justice?"
The radical cleric Anwar al-Awlaki, marked for death by the administration, is the other American referred to in the statement. It isn't clear if Khan was a target or collateral damage.
Al-Awlaki was born in New Mexico but spent nearly a dozen years in his ancestral home of Yemen before returning to the U.S. to attend Colorado State University. After the 2001 attacks, he moved to the United Kingdom and eventually made his way back to Yemen, where he became involved with Al Qaeda in the Arabian Peninsula.
The government claims Al-Awlaki instructed Umar Farouk Abdulmutallab, the so-called underwear bomber, to blow up a plane flying to Detroit in 2009, and inspired the actions of Army major Nidal Hasan, who is being court-martialed for killing 13 people at Fort Hood, Texas in a 2009 rampage. Despite being linked to these planned attacks, Al-Awlaki was never charged with a crime. Two weeks after his death, his 16-year-old son, Abdulrahman, also an American citizen, was killed in a drone strike aimed at Al Qaeda.
Hundreds of suspected terrorists were rounded up after September 11, 2001 and imprisoned in Guantánamo Bay, only to be transferred or released later in a tacit acknowledgment that they weren't terrorists. But when a suspected terrorist is killed, there is no do-over.
Al-Awlaki and Khan made no secret of their allegiance to Al Qaeda and their desire to wreak havoc. Khan's articles in Inspire included "Make a Bomb in the Kitchen of Your Mom" and "I Am Proud to Be a Traitor to America." Al-Awlaki's blog, Facebook page and many YouTube videos were testaments to his terrorism bona fides. But the issue is not guilt or innocence. Were these American citizens accorded due process under the law?
"The Constitution ordinarily guarantees American citizens that they will not be deprived of life without due process of law," says Jameel Jaffer, an ACLU lawyer representing the families of Khan and Al-Awlaki. "The administration has claimed the authority to carry out the targeted killing of anyone, including any American thought to be engaged in terrorism. It's impossible to reconcile that position with the constitutional provision."
"The Constitution guarantees due process, not judicial process," Attorney General Eric Holder said during a speech at Northwestern University's law school in March 2012. "Due process and judicial process are not one and the same, particularly when it comes to national security."