"Eager Young Know-Nothings": A Response to Cully Stimson

Further to the ongoing exchange (begun on Salon and continued on this blog here and here) between Laura Pitter from Human Rights Watch and Ben on the fairness vel non of the al-Nashiri military commission proceedings, Cully Stimson has weighed in over at "The Foundry" (the Heritage Foundation's blog) with his own critique of Laura's account. Separate from the substance of their disagreements over the procedural rules (which I won't address because I wasn't there and haven't watched the video), Stimson closes with the following remarks:

Not one of the seven representatives [from "liberal" NGOs] had ever served in the military, served as a federal, state or local prosecutor, served as a judge, or even as a federal public defender.  Worse still, none had ever attended a regular court-martial. . . . These observers had no relevant real-world experience, and thus no frame of reference whatsoever upon which to gauge the fairness of the proceedings. If we’re going to have an informed public debate on trial by military commission, organizations that are seeking to reform the process will at least have to send knowledgeable staff to take in the proceedings.  Today, with one side of the debate represented by eager young know-nothings, intelligent discussion is drowned out by misconceptions and mistakes.  Doing anything more than issuing corrections seems almost pointless.

In other words, notwithstanding his call for "a healthy, substantive and informed public debate about the use of military commissions," Stimson believes that the only individuals who should be allowed to participate in said debate are those with the relevant real-world experience--and relevance here means military service, litigating criminal cases or at least attending courts-martial, and nothing else. Only then, presumably, would we be able to evaluate the fairness and lawfulness of the military commission proceedings. Perhaps it's because I'm one of the "eager young know-nothings" to whom Stimson refers (Ben would probably agree that he also qualifies--especially the "young" part), but I don't see in his post any response to two of the central critiques of the "reformed" military commissions under the 2009 MCA: (1) the lack of clarity concerning whether the defendants are protected by any provisions of the Fifth or Sixth Amendments; and (2) the open question concerning Congress's constitutional authority to subject at least some of the offenses defined in the MCA to trial by military commission, and the concomitant question concerning Congress's power to so provide retroactively. To be fair, these arguments weren't part of Pitter's critique. And it's just as true that Stimson and I may well answer these two questions differently. But (1) to the extent we do, he is thereby conceding significant differences between courts-martial and military commissions, notwithstanding his argument that the reformed commissions are fair entirely because of their resemblance to our military justice system; and (2) in any event, the mere fact that these questions are open necessarily colors the commissions with a degree of legal uncertainty wholly missing from Article III criminal prosecutions and courts-martial. That is to say, regardless of who has the better of the argument concerning the fairness of the al-Nashiri proceedings, that's only the beginning of the conversation, not the end. We should have a "healthy, substantive, and informed public debate about the use of military commissions." But in having such a debate, we should not assume that those with other views don't know what they're talking about simply because their experience differs from our own. Nor, within that debate, should we assume that procedural similarities to courts-martial, even if descriptively accurate, is the sole relevant metric.