On May 9, five men currently incarcerated at the Guantanamo Bay detention center were charged in connection with the 9/11 terror attacks. Under the Military Commissions Act of 2006, which authorizes that detainee trials begin within 120 days, they could end up in a courtroom in September – almost to the day of the seventh anniversary of the attacks and right as voters start to tune in for the presidential election homestretch.
It's the kind of high-profile event that in the past might have boded very badly for a Democratic nominee saddled with longstanding baggage about the party's credentials on national security. Yet in a reflection of shifting party fortunes on the issue of the war on terrorism, there's considerable debate about whether John McCain or Barack Obama – or neither – stands to benefit from a September courtroom drama, especially if it involves Khalid Sheikh Mohammed, the so-called mastermind of the 9/11 attacks.
"For any candidate to try to use an issue like this, it's necessary to have a larger theme to tie this kind of specific point to," said Rand Beers, who served in the Bush administration and worked on the John Kerry campaign in 2004 before starting National Security Network, a progressive think tank.
Rick Wilson, a Republican strategist who previously worked in the Department of Defense and made the famous 2002 ad that juxtaposed images of Democratic Senator Max Cleland and Osama Bin Laden, warned that anything having to do with Guantanamo – which both candidates have pledged to close—was probably a no-win issue for the presumptive nominees.
"I don't think either side is going to dive into ads over Gitmo," he said. "It's bad for McCain if we're in a political dialogue about Gitmo, but it's disastrous for Obama if we're in a dialogue about Khalid Sheikh Mohammed."
The Obama campaign, of course, is not willing to concede that point, as signaled by its reaction to the controversial June 12 Supreme Court decision allowing detainees to go to federal court to challenge their continued detention.
"The fact that the administration has not tried to do that has created a situation where not only have we never actually put many of these folks on trial, but we have destroyed our credibility when it comes to rule of law all around the world, and given a huge boost to terrorist recruitment in countries," said Obama last Wednesday, directly attacking the Bush administration's use of presidential power and defending the high court decision.
The two campaigns' responses to the ruling suggest that both sides would view a potential September trial as an opportunity to highlight their national security bona fides.
McCain quickly denounced the ruling as "one of the worst decisions in the history of this country" and has used it in an attempt to paint Obama as weak on terrorism and also as a supporter of judicial activism.
Last Monday, after Obama pointed to the federal government's response to the 1993 World Trade Center attack as an example of how to pursue terrorists within the legal system, Republicans seized on the comment. For the next three mornings, the McCain campaign hosted conference calls with appearances by GOP luminaries such as Fred Thompson and Rudy Giuliani that accused Obama of operating within a "September 10 mindset."
"The reality is there seems to be more concern about the rights of terrorists – or alleged terrorists – than the rights that the American people have to safety and security," Giuliani said.
"Senator McCain has never favored giving the detainees at Guantanamo habeas and giving them access to the federal court system," said McCain campaign national security director Randy Scheunemann on a June 17 conference call. "They are very dangerous people … they include Khalid Sheikh Mohammed ... these aren't just your run of the mill dug dealers that are picked up on the South Side of Chicago."
The Obama campaign quickly noted that in 1994 Giuliani praised the successful trial of the WTC bombers, saying that the verdict "'demonstrates that New Yorkers won't meet violence with violence, but with a far greater weapon – the law."
Obama, like McCain, seemed to relish the chance to fight over an issue that in recent years has played to the Republican advantage.
In 2004, exit polls showed 54 percent of voters believed the United States was "safer from terrorism" than four years before and 58 percent trusted President George W. Bush to "handle terrorism" compared to just 40 percent for Democrat John Kerry. Among those who ranked terrorism as their top issue, Bush won 86 percent.
"I refuse to be lectured on national security by people who are responsible for the most disastrous set of foreign policy decisions in the recent history of the United States," he said on Wednesday. "The other side likes to use 9/11 as a political bludgeon. Well, let's talk about 9/11."
When asked about the prospect of September trials, the Obama campaign pointed to the failures of the Bush administration.
"He has not, I don't think, gone out of his way to criticize the process, but he has said as president he would support using the American federal courts and the courts martial as a way of resolving this detainee situation," said Greg Craig, an Obama foreign policy adviser and former Director of Policy Planning in the State Department. "He would hope there would be much more success in resolving that than what has been shown in the last six years.”
Of course, there's no guarantee any trial at all will occur by September – legal maneuvering to date has ensured that only one case has gone to trial so far and it was settled in a plea agreement.
"The administration would like to have the big 9/11 trial in the fall, but it may not happen that soon," said Bradford Berenson, a lawyer at Sidley Austin who served as associate White House counsel during Bush's first term.
But even if a trial doesn't occur by the fall, says Deborah Pearlstein, the founder of Human Rights First and a specialist in national security law, it's still likely that issues related to the war on terrorism will be a staple of campaign debate.
"Between now and Election Day, the campaigns will be facing a host of events that will keep law and security issues front and center," she said. "The resumption of habeas corpus hearings in the federal courts, the acceleration of major military commission trials at Guantanamo, the lingering prospect of legislation on all this on Capitol Hill - hard to see how either candidate avoids an ongoing set of questions."
Just how much those questions will matter to voters is uncertain. A Washington Post/ABC News poll taken from June 12-15 reported that only four percent of voters rank "National Security/Terrorism" as their top issue – compared to 19 percent in 2004 exit polls.
McCain, however, was more trusted by a majority of voters on national security issues – 53 percent trusted him more when it came to handling the U.S. campaign against terrorism, while 39 percent picked Barack Obama. And when it came to the war in Iraq, voters preferred McCain by one percentage point.
The Washington Post/ABC poll found that 61 percent of those asked disagreed with the Supreme Court decision that Guantanamo detainees "should be allowed to challenge their detentions in the U.S. civilian court system" compared to only 34 percent who agreed.
"I think the Republicans will run on national security quite a bit, but it's not because they're so dominant," said Jeremy Rosner, a Democratic pollster who studies public opinion and national security. "It's the only area where they're still competitive."
In late March, Rosner conductd a poll that showed Republicans with an 7-point advantage on "national security", and Democrats with a 11-point advantage on "foreign policy" a distinct shift from the last presidential cycle.
Rosner said that his experience with focus groups indicates that issues like Guantanamo and the Foreign Intelligence Surveillance Act "are not highly salient issues for the public, even for people who are attentive to international issues."
Still, he noted, "If there's a trial, that turns it into a different kind of issue, because it's a very visible face."