Cully Stimson Responds...

My earlier post prompted the following reply from Cully Stimson, whom I thank for sending such a thoughtful response, and which I think it only fair to post in its entirety:

My friend Steve Vladeck takes me to task for what he believes is my point in my Heritage post.  He writes, “Stimson believes that only individuals who should be allowed to participate in said debate are those with the relevant real-world experience---and relevance means military service, litigating criminal cases or at least attending courts-martial, and nothing else.” That is not what I believe at all. But experience matters.  To be sure, there are people without relevant experience who become experts in various disciplines, including the law.  Steve is certainly an expert in a variety of areas of national security law, and so is Ben Wittes---whom he mentions in his post. My point was not to suggest that, absent those specific experiences, one could not be an expert in military commissions.  I was simply attempting to point out that had Laura Pitter had any of those relevant experiences, she would have known instinctively about the differences and similarities about the two systems. Steve rightly takes me to task for using the term “eager young know-nothings,” a phrase I should not have used.  And he rightly points out that there was no discussion about the Fifth or Sixth Amendment or Congress’s constitutional authority to subject “at least some of the offenses defined [by] the MCA to trial by military commission.”  He’s right, but that is because Pitter’s original post did not address those topics head on, and my post was a rebuttal to hers. Finally, Steve whacks me for criticizing “those with other views.”  Again, I don’t take issue with “those with other views,” as I said in my post, but I do think that the public debate must be based on facts----whether gained through relevant experience or otherwise.

Below the fold, I offer a few thoughts in reply... First, I'm really grateful to Cully both for responding, and for engaging so carefully with each of the points I tried to raise in my earlier post. Of course I agree with Cully that experience matters; I just think (and suspect Cully agrees) that we're all better off keeping the conversation focused on our substantive points of disagreement, and not our own views concerning how those with whom we disagree have come to the (in our view) incorrect conclusions. Like many other similar conversations, discussions of individuals' subjective experiences (and the value thereof) get very tricky, very quickly. Second, Cully is absolutely right that he didn't have any reason in his Heritage post to address my two substantive critiques of the commissions in their present form. I raised those points only to suggest that, even for those who are more sympathetic to Ben's and Cully's view of the al-Nashiri proceedings, there are still several rather large elephants in the room--issues that will need to be resolved before we can comfortably proclaim that military commissions are, in fact, lawful. And as for whether they're good policy, as the Dutch historian Pieter Geyl said in describing the discipline of history, I suspect that that one is simply "argument without end."