Writing in Salon magazine, Laura Pitter of Human Rights Watch declares that “fundamental procedural protections afforded defendants in federal courts simply do not exist in military commissions. And without comparable fairness and transparency, the promise of justice remains a big question mark.” Pitter spent Tuesday and Wednesday of this past week, as did I, watching the Al-Nashiri military commission. But in reading her piece, I wondered whether she and I had watched the same arguments. The arguments I saw reflected a sharply adversarial process, with a serious judge, very fine advocacy on both sides, and a series of motions that raised issues that differ only at the margins from those that would arise in a federal court proceeding. Pitter, by contrast, says that “this week, behind thick bulletproof glass in a secure hangar-like courtroom at Guantanamo, I saw vast differences between the two systems.”
The trouble is that many of the “vast differences” Pitter describes are actually mirages. They exist largely–or in some cases exclusively–in the minds of those who want very badly to see them. Indeed, nearly every point in Pitter’s essay is wrong, or at least misleading, and she is putting these points out in the name of an important human rights NGO whose monitoring of legal proceedings is taken seriously by many people. While there are legitimate questions about the developing military commissions system, it is important to focus on the real questions, not the mirages. I therefore offer the following point-by-point response not because I hope to convert Pitter to the cause of military commissions, about which I have mixed feelings myself, but rather as an exercise in clarifying what is truly distinctive about the commissions process, and what is not.
