Andrea Prasow Responds on the NYT and Military Commissions

Speaking of responses to my comments on the New York Times debate, Andrea Prasow of Human Rights Watch---who participated in the discussion---sends in the following:

Ben seems to find it boring that Human Rights Watch still maintains, as we have for years, that the way to close the Guantanamo detention center responsibly is by transferring detainees for whom there is evidence of criminal conduct to the US for trial, and sending the rest to their home or third countries. Indeed, we will continue to assert that until the US finally fulfills its obligations under international law. Just as we did not drop our opposition to unlawful rendition, secret detention and torture when the US engaged in them, or concede that their very practice made compromise necessary, so too with our objection to indefinite detention without trial and fundamentally flawed military commissions. And principled persistence has paid off: our continued opposition, and exposure of many of the details of certain past practices of torture and ill-treatment, contributed to their eventual rejection. Military commissions are not, as Ben claims, a done deal. The US can still reverse course. Congress can lift restrictions on transfers to the US and other countries in the NDAA, and if it does not, the president can veto the bill. Clinging to the unfair and ineffective military commissions, as Ben does, risks making further international cooperation with the US on terrorism impossible, since few countries will transfer a terrorism suspect to the US to face detention or prosecution in that system.

Prasow is on to something here. I do find boring the unwillingness on the part of Human Rights Watch and other human rights groups (with Human Rights First notably excepted) to engage seriously with the current reality of military commissions. The group can insist that the issue hasn't changed, though amendments to the MCA and practice under the law have, in fact, shifted the ground, and though the repeated election of presidents and legislators of both parties committed to military commissions moot the in-principle argument against commissions. But in doing so, Human Rights Watch sound a bit like conservatives will sound if---a few years from now---they are still refusing to accept that the Obama health care reform law is here to stay:

Ben seems to find it boring that Americans for Free Market Health Care still maintains, as we have for years, that the way to fix our nation's health care system is to repeal Obamacare. Indeed, we will continue to assert that until the US finally fulfills its obligations to the people and frees business from these shackles of creeping socialism. . . . Principled persistence will pay off: our continued opposition, and exposure of many of the details of Obamacare's death panels will contribute to their ultimate rejection. Obamacare is not, as Ben claims, a done deal. The US can still reverse course. Congress can still repeal it, and if it does not, the president can veto the bill funding it and imposing punishing new mandates on the states. Clinging to the unfair and ineffective Obamacare, as Ben does, risks destroying the greatest health care system the world has ever known.

Such arguments confuse words like "can" with words like "is likely to" or "might plausibly." Yes, Congress can still allow a federal court trial of KSM, but the likelihood of its doing so is about as small as the likelihood of its repealing Obamacare with a Democratic Senate. Yes, the president can still veto a bill that retains the transfer restrictions, and the chances of that are a bit higher, I suppose---though still not very good. But even if it did, Prasow is missing something big here: The administration is, however uncomfortably, committed to the commissions. It worked with Congress to get the 2009 MCA passed, and when Attorney General Holder gave up the ghost and allowed the 9/11 military commission case to go forward, it represented a further commitment to making this system function. Having capitulated once to Congress over the trial, in other words, the administration has now staked its credibility on Prasow's being wrong---that is, on its being able to conduct fair and credible trials in the highest-profile cases in commissions. Having done so, it is hardly likely to capitulate to Human Rights Watch and hold the trial in New York after all. I would have preferred a 9/11 trial in federal court too, but that ship has sailed. The question now is what sort of commission system will emerge from these trials---and whether and how we will use that system in the future. By taking its stand on a position the country has decisively rejected over the past four years, Human Rights Watch ensures that it will play no significant role in this very consequential set of questions.