Terrorism Trials & Investigations

The Difference Between Military Commissions and the ACA

By Steve Vladeck
Tuesday, November 20, 2012, 9:31 AM

In his response to Andrea Prasow, Ben suggests that, in continuing to object to military commissions that have been blessed by two Congresses and both the Bush and Obama Administrations, "Human Rights Watch sound[s] a bit like conservatives will sound if—a few years from now—they are still refusing to accept that the Obama health care reform law is here to stay."  Although I agree with Ben's initial response to the NYT Room for Debate series that at least some of the contributions seemed disinclined to even remotely engage with the issues currently facing commissions (paging Marc Thiessen), there's one monumental distinction between the commissions and the ACA that Ben's most recent post elides: The role of the federal courts. To my mind, at least, there is a world of difference between continuing to advocate, wholly as a policy matter, for repeal of a controversial piece of legislation that the Supreme Court has expressly upheld from constitutional challenge, versus continuing vigorously to oppose a controversial policy choice that just hasn't received the same judicial stamp of legal approval--and, indeed, that miserably failed its first real test before what should have been a sympathetic panel of circuit judges. And as Raha Wala rightly suggests, there are lots of equally difficult legal challenges to the commissions in the offing...

To be clear, I still think there is great value in arguing that a particular policy is morally and politically wrong even when all three branches have decided to the contrary--and that's where I suspect Ben and I disagree. [Even in the Supreme Court, there is a worthwhile debate over the value of perpetual dissents on settled issues.] But I reject the implication, however unintended, that this is an accurate description of the current state of play for commissions--or that arguments that continue to seek to expose the myriad legal problems with the commissions, many of which are structural, are somehow "boring" simply because they aren't new.