Consensus at the HASC Hearing on the Need for Flexibility?

I came away from today's HASC hearing much more optimistic about the future course of our detention/prosecution policy than I had been coming in, as there were signs of what I hope will become consensus on two key issues. The first issue concerns the use of civilian criminal prosecution for overseas captures (note that no one appeared to be arguing against civilian prosecution for domestic captures, at least not across the board).  On this point, I was struck by the way Michael Mukasey framed the issue.  As he put it, the issue is whether commissions or civilian prosecution should be the default option in such cases--not the only option, but the default one. Of course there will still be lots of disagreement about when and why the non-default option would be used instead--and whether it might make more sense, as I would prefer, to avoid making one or the other the presumptive favorite--but if we can at least agree that it would be unwise to simply take civilian criminal prosecution entirely off the table, this would mark a substantial improvement in the direction of the debate. The second issue concerns the current draconian restrictions on transfers out of GTMO, which happen to strongly discourage the administration from bringing new detainees there.  Again, I was struck by the position Michael Mukasey took, as in a colloquy with ranking member Adam Smith he appeared to agree that it is unwise to deny the administration all flexibility to effectuate transfers.  As with the prosecution issue above, there no doubt is still much to fight over in terms of how much micromanaging of the transfer decision process Congress should engage in, but it would be a tremendous improvement if Congress backed away from imposing standards that cannot realistically be met in most cases. There were many other interesting points in the hearing, and I encourage readers to watch the video (see Ben's post below).  For now, however, my bottom line is that there was a glimmering of flexibility that just might pave the way toward a version of the NDAA for FY12 that could avoid a veto.