Enemy Combatants in Election 2008

A few days ago Barack Obama said this about the latest Supreme Court decision and its effect on the upcoming election.

At a town hall meeting in Wayne, Pa., today, Sen. Barack Obama, D-Ill., embraced an issue hardly made for his own TV ads: the rights of detainees accused of terrorism.

"I think we should make it an issue," Obama said, referring to the 5-4 U.S. Supreme Court decision in Boumediene et al v Bush "that said we are going to live up to our ideals when it comes to rule of law.

Basically what it said was those prisoners that we hold in Guantanamo deserve to be able to go before a court and say, “It wasn’t me” or “I didn’t do it.”

Obama is absolutely right that the two candidates couldn't be more different on this issue. Here is how McCain described the issue.

I think it's one of the worst decisions in history. It opens up a whole
new chapter and interpretation of our constitution.

The politics of this decision could in fact play a key role in deciding which of these two will get elected. It appears that John McCain sees this as an issue that benefits him just as Obama does. McCain immediately tied Obama's response to a "September 10th" mindset.

Senator Obama is a perfect manifestation of a September 10th mindset. He brings the attitude, the failures of judgment, the weakness and the misunderstanding of the nature of our adversary and the dangers posed by them to a series of policy positions,” said Randy Scheunemann, McCain’s senior foreign policy adviser.

The 1993 car bombing underneath the North Tower failed to cause a collapse of the building but killed six people and injured 1,042. Four of the co-conspirators were convicted in 1994 and two more in 1997.

His surrogate, Rudy Giuliani, echoed this sentiments.

Throughout this campaign, I have been very concerned that the Democrats want to take a step back to the failed policies that treated terrorism solely as a law enforcement matter rather than a clear and present danger," Giuliani said in a statement released by the McCain campaign.

"Barack Obama appears to believe that terrorists should be treated like criminals -- a belief that underscores his fundamental lack of judgment regarding our national security. In a post-9/11 world, we need to remain on offense against the terrorist threat which seeks to destroy our very way of life. We need a leader like John McCain who has the experience and judgment necessary to protect the American people."

The Democrats maybe stepping into a landmine on this issue. Here is how the responded.

(McCain) has fully embraced, willfully, openly, fully embraced the failed tragic policy of the Bush Administration over the last 7 and a half years, and he’s really defending a policy that’s indefensible.

Said Clarke: "I'd like them to show where in the record Sen. Obama has ever said he is in favor of a pure law enforcement approach."

Now, no matter what the issue they will say that McCain supports Bush and that it was disastrous. You will hear this over and over. That may work on the economy or Iraq where there is clear signs of problems, (or with Iraq where there were and then no one noticed when things turned around) but on this issue I think most folks are fine with terrorists being stuck in GITMO. I don't know how comfortable they are with these folks making their rounds through federal courts. Democrats can tie this policy to Bush all they want, but in effect, they are saying they want to see terrorists making their rounds through federal courts.

Civil rights are great in the abstract however here they are squarely for the civil rights of terrorists, at the expense of the safety of our own citizens. Here is how Kerry surrogate responded to a question from Bill Sammon about whether or not this would mean that Osama Bin Laden would be able to challenge his detention in a U.S. court if captured on the battlefield.

Let me answer that on several levels. This is John Kerry. First of all the Supreme Court of the United States has ruled that they have those rights. This is not Barack Obama. This is the Supreme Court of the United States. If John McCain were president, he would have to give them those rights. This is a phony argument. And it is typical of what the Republican playbook is, which is say anything no matter what the other side has said. Just say it. And enough people may believe it unless you folks write the truth and write it boldly and clearly.

That sounds like a yes, and he can claim it is a phony argument, however Barack Obama supports the decision. He has made that clear. If UBL is captured and sent to GITMO, he would be able to challenge his detention in a U.S. Court. Barack Obama supports UBL challenging his detention in federal court then. That is not a position he wants to take to the U.S. public at large.

This issue can be tied to the issues of judges in general. Remember it was the four judges that were most similar to the philosophy that John McCain would support that voted against this decision. I continue to believe that the California decision to legalize gay marriage will be the most effective way in which to make judges a major campaign issue. Judges are usually a backburner issue, and that may still be the case this year. That said, it is also an issue that the base gets charged about. McCain has done plenty to turn off the base. Here is an issue that can energize the base on his behalf. There's almost nothing more that gets the Republican base more riled up than activist judges. There is few red meat more soothing than the sound of strict constructionist judges. On this issue, John McCain is lock step with the base.

Barack Obama, on the other hand, may see the issue of judges as a strong one because of his background in Constutional law. I think that maybe an overstatement. I don't know how much credence the general public gives to Ivy League type academics. Furthermore, if his background leads him to conclude that judges can usurp and create a right for gays to marry and enemey combatants to challenge their cases in court, then his experience is not worth all that much.