Suppose that Sarah Palin lived in Pakistan. Suppose that Jared Loughner, the alleged killer of federal Judge John Roll and Rep. Gabrielle Giffords' staffer Gabe Zimmerman, had once traveled to Pakistan. Suppose that a "credible source" told a U.S. intelligence official that Loughner, while he was in Pakistan, had met with Sarah Palin. And suppose that Sarah Palin had published a map showing Gabrielle Giffords' congressional district under the cross hairs of a gun sight (of course, as the world knows - including, presumably, people in Pakistan - this last statement is not a supposition, but an established fact.)
Under his constitutional authority as Commander-In-Chief, under the authority granted by the 2001 Authorization for the Use of Military Force, under any other provision of U.S. law, could the President of the United States order a drone strike on Sarah Palin's house?
This is exactly the sort of hypothetical question that courts consider all the time in judging whether government actions are legal and constitutional. If the government has the legal authority to do X, does it also have the legal authority to do similar thing Y? If not, why are the two situations legally different? We claim, in the United States, that we live according to the rule of law. A fundamental premise of the rule of law is that you cannot have one law for Fred on Monday and another law for Suzie on Tuesday. If you have one law for Fred and another for Suzie, then you have laws, but you do not have the rule of law.
But despite the efforts of the American Civil Liberties Union and the Center for Constitutional Rights, this particular question has never been tested in a U.S. court. The lawsuit the ACLU and CCR brought seeking to force the government to establish legal standards for assassination by drone strikes was dismissed last month on other grounds without testing the merits of the underlying argument.
CCR wrote at the time:
Judge Bates asked but did not answer the troubling question, "How is it that judicial approval is required when the United States decides to target a U.S. citizen overseas for electronic surveillance, but that, according to defendants [that is, according to the US government - RN], judicial scrutiny is prohibited when the United States decides to target a U.S. citizen overseas for death?"
This question is highly relevant to U.S. policy in Pakistan today. Because, according to Bob Woodward's book Obama's Wars, there is a plan in place for massive U.S. retaliation in Pakistan for a terrorist attack in the United States that can be "traced to Pakistan." And the threshold for "traced to Pakistan" will be determined by the President and his advisors, without any outside legal scrutiny; and the target list for retaliation has been determined in advance by the President and his advisors, without any outside legal scrutiny.
If last Saturday's terrorist attack in Arizona had been "traced to Pakistan," and the President were now poised to execute the plan for massive retaliation, how confident could we be that every person on the U.S. target list - not to mention every other human being who might be killed or wounded in such a retaliation - would bear a stronger connection to the attack than the chain of causation that now links Sarah Palin to the terrorist attack in Arizona, especially given that the target list for retaliation in Pakistan has been drawn up in advance of the event for which the retaliation will be carried out?
Neither the public, nor any court, have been given evidence to establish such confidence. And if we are not confident, you can bet your bottom dollar that millions of Pakistanis and others around the world will not be confident that the chain of evidence that links people on the U.S. target list in Pakistan to any future terrorist provocation will be stronger than the chain that links Sarah Palin to the terrorist attack in Arizona.
Imagine the reaction in Pakistani and world media to such a massive retaliation. Isn't it likely that many editorials denouncing such retaliation would mention Sarah Palin, and accuse the U.S. of having a double standard on incitement of terror? "The U.S. policy on incitement is, 'If you're white, you're all right,'" the editorialists are likely to charge.
Isn't the perception of a double standard creating a major liability for U.S. foreign policy?
Isn't it long past time for us to bring our efforts against terrorism within the four corners of U.S. and international law?
Isn't it long past time for us to establish one set of legal standards that apply universally to our efforts against terrorism, regardless of whether the terrorists or those who incite them are white or black, Christian, Muslim, or Jewish, domestic or foreign?