Drones, torture, the war on drugs, and seven other issues that shape our lives at home and our standing abroad
By design and consent, Monday's third and last presidential debate, moderated by the incomparable Bob Schieffer, will be about foreign policy. This means that another election year has come and gone without the main presidential candidates being asked -- never mind candidly answering -- some of the great legal questions of our time. This isn't just shameful for the candidates and the reporters who have been covering them. It's a pity for voters, because it deprives us of insight into some of the bigger differences between the two men.
Here are 10 law-related questions, five for each candidate. Their answers would enlighten us about some core values that would be in play in an Obama or Romney term. Some of them, I hope Schieffer will find, touch upon foreign affairs, and thus could form the basis of a question he might conceivably ask next week when he is sharing a table and a microphone with President Barack Obama and Mitt Romney. (For the record, I expect Schieffer will bring his full "Texas" with him Monday night and brook no nonsense from the candidates.)
For President Obama: Last year, an American citizen named Anwar al-Awlaqi was killed in Yemen by a drone strike reportedly authorized by you. The executive branch alleged that he was a terrorist, but that was never proven in any court, or established publicly in any way, either before or after al-Awlaqi was killed. Your tribunes said only that the man had been given all the process he was due. Does it concern you that a U.S. citizen could be killed in this fashion, without a judge ever looking at the case, or any public evidence that he was a deadly threat? And when will you disclose in full the legal justifications for such a policy?.
For Mitt Romney: David Cole, the constitutional scholar who has so well chronicled the war on terror, wrote recently in the New York Review of Books that a Romney White House "would risk a return to the immoral, illegal, and counterproductive policies of President George W. Bush." He added:
We were painfully reminded of this prospect on September 27, when the New York Times reported on a leaked memo, written by Romney's national security advisers, urging him to advocate restoration of the CIA's "enhanced interrogation techniques," i.e., to return us to the "dark side" of professionally administered torture and physical cruelty.
Mr. Romney, the policies your advisors want you to implement are some of the very policies that brought us the Abu Ghraib prison scandal, international condemnation, and legal disaster. Are you considering a return to so-called "enhanced interrogation"? And if, as you have said, waterboarding isn't torture, please tell us exactly what it is, and why we prosecuted it as a war crime following World War II.
For President Obama: When you were running for President in 2008, you blasted the Bush Administration's approach to medical marijuana laws. You said during your campaign back then that you wouldn't use Justice Department resources to go after state operations. Yet that's exactly what your Justice Department has done, aggressively raiding state-sanctioned medical marijuana dispensaries. How do you explain the gulf between what you promised as a candidate and what you have practiced as president? And how is such enforcement consistent with your pledge to respect states' rights and reduce prison populations?
For Mitt Romney: This election season has been marked by intense legal battles all over the country over restrictive new voting laws. In each case, Republican lawmakers passed partisan state laws making it harder for registered elderly, ill, and minority voters to cast a lawful ballot. One local politician even promised his fellow Republicans that his state's new voter ID law would guarantee you a win there. Are you in favor of the continued application of the Voting Rights Act to protect minority voting rights, or will your solicitor general follow the path of many current conservative activists and ask the Supreme Court to strike it down?