Answer the tough questions

Barack Obama and John McCain agree that torture is a bad thing. Both also favour closing the prison at Guantanamo Bay. That's a good start.

The problem is that too many people have treated those policies as ends rather than beginnings. As America shifts its focus from picking candidates to picking a president it is time for media, voters and interested foreign observers alike to start looking carefully at the candidates' approach to national security issues and asking some tough questions.

Since the natural tendency of any politician is to avoid commenting on anything remotely controversial the questions need to be tough - and they will need to be asked repeatedly,

Take waterboarding. Both Obama and McCain, unlike the Bush administration, agree that it is torture and should not be used by American interrogators.

But beyond simply halting the practice, does either man intend to instruct his Justice Department to issue new policy guidelines overturning the Bush administration ones that provided legal cover for the practice?

For that matter, does either man intend to de-classify the Bush administration's legal memos on the subject as well as making public whatever new documents it may issue to reverse them?

Then there is the vastly expanded eavesdropping authority the current administration has acquired.

It is unquestionably good that a McCain or Obama administration seems likely to announce it will not snoop on Americans and the people they are calling or emailing in the way the Bush administration apparently has ("apparently" because almost everything we think we know about these programmes remains classified, forcing news reports on the subject to rely on a combination of leaks and semi-informed speculation).

But does it intend to retain the legal right to do so, even if it does not actually exercise that right?

McCain and Obama have both called for closing the Guantanamo prison camp. But what, exactly, does it mean to "close" the camp? Sending the prisoners somewhere else means little if the legal infrastructure undergirding Guantanamo remains in place.

The Bush administration has built its nascent national security state on the belief -common in some parts of the world but fundamentally alien to America - that anything the government does under the catch-all rubric of "security" should be exempt from any substantive public debate or scrutiny.

To enable itself to do this the US government has relied on a variety of tools: laws, of course, but also executive orders, and legal memoranda.

What needs to be more widely understood is that most of these documents are essentially open-ended in nature: the administration that issued them may leave office, but as a matter of law and policy these documents remain on the books unless and until someone moves to rescind them or issues new orders that supercede the old ones.

Current law, for example, gives the President the authority to declare any foreign national an "enemy combatant" and detain him or her more or less indefinitely. McCain and Obama both say they do not plan to run their administrations that way.

But it should not be enough to promise better governmental behaviour. Both candidates need to be asked whether they will go a step further: repealing the laws and withdrawing the policies that make the "enemy combatant" declarations possible in the first place.

This is no small matter, because even if Obama is in the White House next year you can rest assured some advisor will be telling him: "Mr. President, you need to be careful. Change you conduct, that's fine, but do not give away the legal tools President Bush left behind for you. Who knows what the future may bring? You might need them. And even if you don't, one of your successors may."

Theoretical interests

This argument - that the theoretical interests of future presidents must always be borne in mind by the current president - resonates powerfully inside the Oval Office.

It is all the more seductive because any president can get a lot of political advantage out of announcing a change in what he plans to do, while quietly doing nothing to limit what he is allowed to do.

For centuries America's strength has lain in the fact that it is a republic of laws: in the idea that presidents are not kings, and that the government has only as much authority as the people, acting through their elected representatives, give it.

Bush's real, lasting legacy is the damage he has done to this idea. If his successor really wants to restore the country's greatness re-establishing some sense of balance is an excellent place to start.

It will only happen, however, if the media, the voters and the international community let the candidates know that this issue, however arcane it may be, is the one that encompasses all others.

Gordon Robison is a journalist and consultant based in Burlington, Vermont & Cambridge, Massachusetts. He has lived in and reported on the Middle East for two decades, including assignments in Baghdad for both CNN and Fox News.