Stephanie Blum Defends the Human Rights Groups

Stephanie Blum, author of The Necessary Evil of Preventive Detention in the War on Terror and other stuff, writes in to question my recent post responding to Human Rights Watch and Human Rights First on the Majid Khan plea deal. In my view, she makes a clearer case for the organizations' positions than either organization makes on its own behalf. Here is her letter, followed by my own thoughts.

I agree with you that the current military commissions appear to be fair, certainly when compared to the rights a defendant receives in federal court.  But I respectfully question your logic with respect to criticizing the NGOs who think the plea is flawed because the underlying system is flawed. You think the military commissions system is not flawed, so of course you think the resulting plea is fair.  But the NGOs think the underlying system is so flawed that it cannot produce a fair plea. You are coming from different vantage points. I can certainly imagine a system that is so unfair where I would feel like pleading guilty (even to something I did not do) in order to avoid going through an unfair system (where I had already been tortured).  I may decide that pleading guilty gives  me certainty against the whims of an unfair system. (Do we really believe that people who plead guilty in an Iranian court are really guilty?)   To be clear, I am not saying that Khan is not guilty or even that the military commissions proceedings are unfair.  Rather, I am saying that we feel that the Khan plea is fair mainly because we think the surrounding system is fair.  But if you fundamentally believe the surrounding system is grossly unfair (as these human rights NGOs apparently do), then it logically follows that they would criticize a resulting plea.   In sum, the plea agreement cannot be separated from the underlying system that produced it.  Since you and I think the system is fair, then we are fine with the plea agreement (from a legal perspective).  But I can certainly imagine a situation where I would not be fine with a resulting plea agreement that stemmed from an unfair system, and that apparently appears to be the argument coming from these NGOs.

I certainly agree with Stephanie that it is possible to imagine a system that is so unfair that one would not trust a plea that emerged from it. I also agree with her that this is, in essence, what both Human Rights Watch and Human Rights First in slightly different ways are saying about the military commissions system. But fairness as a judicial matter is not quite like beauty; it does not reside entirely in the eye of the beholder. To say that a system is fundamentally unfair, much less so unfair that one regards a negotiated plea emanating from it as illegitimate and unreliable, one has to identify the features of the system that fall short of some accepted norm. I have no trouble doing this with respect to the Iranian justice system. But I have been endlessly struck by how flummoxed human rights groups stridently opposed to the commissions systems have been in the project of identifying its unfair features. Invariably, when they try, they end up either mischaracterizing current law and practice or identifying features that are also present in the federal court system, which they regard as the benchmark of fairness. So yes, Stephanie is right: An organization that regards the system as fundamentally flawed has every right to regard pleas that emerge from it as flawed too. But such an organization, it seems to me, has the obligation as well of identifying the flaws with both greater precision and greater accuracy than the human rights movement has done to date with respect to post-MCA 2009 military commissions.