Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
It's easy to understand why neither presidential candidate spent a lot of time talking about the legal war on terrorism last Friday during the first of three campaign debates.
John McCain doesn't want to talk about it because, surreally enough, his position on torture is fundamentally inconsistent with the views of a majority of Americans and because the Arizona senator is significantly responsible for the legal chaos currently taking place at Guantanamo Bay's "Camp Justice." Barack Obama doesn't want to talk about it because the last thing his campaign needs right now is to remind voters that the Illinois senator backed legislation that would have increased the rights of the terror detainees currently held in Cuba.
Barring an act of terrorism, or some miraculous economic rebound, this is a dynamic that is not likely to change before Election Day. And that's a shame because before the current economic crisis our leaders in Washington spent a great deal of time trying (and mostly failing) to figure out a way to use our civilian and military justice systems to process suspects apprehended during the war on terror. Since the detainees apparently are with us for a while, since hundreds of them have not been prosecuted, much less sentenced, and since the next president, whomever he is, will eventually have to deal with them, it would be nice to hear who's got what plan in mind.
Just don't expect any grand explanations to occur anytime soon. If McCain tries to position himself as a positive change agent in the legal war on terror, Obama stands ready to remind voters that, despite the fact that McCain himself was famously tortured during the Vietnam War he failed or refused to ensure that the White House would be unambiguously barred from allowing its agents to torture terror detainees. Instead, the Republican candidate settled for a mealy-mouthed ban on "cruel, inhumane or degrading treatment" of prisoners even as the Bush Administration, through a signing statement, indicated that it would continue to torture if it needed to.
However, if Obama tries to position himself as a candidate who will right these sorts of legal wrongs that have taken place over the past seven years, McCain stands ready to remind voters that Obama voted to open the doors to our federal courts to terror suspects who want to challenge their detention before they are tried by military tribunal. Even though the United States Supreme Court eventually agreed with Obama's position (to the great consternation of candidate McCain) it's not hard to see how Republican spin operators could turn that view into a "soft on terror" campaign commercial. And it's equally clear, given the way the campaign already has unfolded, that such a negative twist could and likely would hurt Obama's poll numbers.
But McCain can't truly go on the offense by trumpeting the progress that's been made at Gitmo's detention camps. Alas, there has been no successful "surge" there. In fact, things are clearly getting worse. Last week, a military prosecutor loudly resigned after alleging that the government was withholding key evidence against a low-shelf terror defendant. Khalid Sheik Mohammed, who really is a terror mastermind, is trying to upset his tribunal at Gitmo with repeated requests to represent himself. And the military judge presiding over the trial now also has to deal with questions about the potential incompetence of Ramzi Binalshibh, another key 9/11 planner.
We also learned last week from ABC News and The New York Times that top-ranked Bush Administration officials discussed, and evidently approved, torture-tactics before executive branch lawyers came up with their now infamous "torture memos." As hard as it may have been for McCain to justify his political capitulation on the torture issue in late 2006, long before this information was made public, it's even harder now that we know the command to engage in such conduct clearly came from the top down and not from the bottom up.
So both sides seem content to let momentous matters of law and terror drop, or float around the ether anyway, while they press on with issues that affect voters in a much more direct way. Makes sense. Why should the average fellow care about the treatment of detainees when gas prices have doubled and his 401k value has dropped in half? Why should a hockey mom care about the procedures employed by military prosecutors when banks are refusing to loan money, home values are way down and bad mortgages litter the landscape?
For a long time, the legal aftermath of the terror attacks of September 11, 2001 was an enormous part of the political conversation in Washington and around the country. That is no longer the case. And neither candidate seems particularly troubled by it.