10 Law-Related Questions Bob Schieffer Should Ask the Candidates

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Drones, torture, the war on drugs, and seven other issues that shape our lives at home and  our standing abroad

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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?

For President Obama: Your political allies, on and off Capitol Hill, are frustrated, even angry, over your approach to judicial nominations since you took office. Your legal background and experience as a law professor, they contend, should have made you eager to quickly nominate good judicial candidates for open spots on the federal bench. Yet in many cases you have delayed making your selections, or have not followed through on your nominations. How much blame are you willing to accept for the numerous "judicial emergencies" that exist today in federal court jurisdictions all over the country?

For Mitt Romney: During the Bush Administration, scores of high-profile terror suspects were successfully prosecuted in federal civilian court, including Richard Reid, the so-called shoe-bomber, who was sentenced in a courtroom in in Boston. Not a single terrorist was ever acquitted during that time. But as soon as President Obama took office, your fellow Republicans ended their support for such trials, arguing that they were no longer the best way to protect American interests. Mr. Romney, if the federal courts have been good enough for terror trials for nearly 250 years, why aren't they good enough now?

For President Obama: You promised in 2008 that, if you were elected, you would preside over the most transparent administration in American history, yet your critics on the right and on the left have argued that you are as bad as, or even worse than, your immediate predecessors when it comes to openness in government. From the state secrets doctrine, which federal lawyers have aggressively applied in court, to the prosecution of suspected "leakers," whom your Justice Department has pursued with historic zeal, people perceive this administration to be secretive and hostile to transparency. How do you explain that?

For Mitt Romney: You said recently that your judicial role models today are the four most conservative justices of the United States Supreme Court. None of the men has expressed support for the proposition, first announced in Roe v. Wade, that the Bill of Rights protects abortion rights. In 2002, you ran in Massachusetts claiming to broadly support abortion rights. Ten years later, running for president, your position evidently has changed. So, with your judicial role models in mind, why should any voter out there believe that a vote for you means anything other than a vote to end abortion rights for all women everywhere?

For President Obama: We live in a prison society, leading the world in incarceration. As Adam Gopnik noted earlier this year, there are today in America more people in prison, on probation, or on parole than there were in the gulag archipelago during the height of Stalin's reign. There are more black people caught up in the criminal justice system than there were slaves before the Civil War. And there is great racial disparity in sentencing. Why hasn't your administration done more to address this problem, especially since many conservatives, citing the harsh economics of incarceration, seem open to genuine reform?

For Mitt Romney: In the past two years, several Republican-appointed judges have struck down the centerpiece of the Defense of Marriage Act, the federal law which defines marriage as only between a man and a woman. Republican appointees in California also have protected same-sex marriage rights. We know where you stand on same-sex marriage. My question is more basic: Do you agree with the proposition that federal judges have a duty under the Bill of Rights to protect individual rights against majority rule? And, if so, how do you square that belief with your criticism of Republican judges who say that same-sex marriage is legal?

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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