I was unable to reach Ben Wittes on the phone the day the administration's decision not to seek a new preventive detention law came down, but I expected him to be disappointed with the move. I may have underestimated the degree to which he was disappointed -- Wittes takes to the Washington Post op-ed page today to compare the current president to one of his most vocal detractors, Dick Cheney. Wittes had crafted a preventive detention proposal that he thought would provide adequate congressional and judicial oversight over the executive branch's authority to detain terrorist suspects.
[T]he failure to go to Congress to write the rules means that the rules for detention will be written by judges. So far, the judges who have heard habeas cases have disagreed about a great many central issues -- many of which the Supreme Court will ultimately have to resolve. The high court, which has not a single national security expert, may end up making good policy or bad. But because the Supreme Court is ideologically split on these issues, it seems likely that its swing justice, Anthony Kennedy, will play a disproportionate role in writing the rules of the road. Is it really better to hand this complex policy problem over to the whim of a single unelected detention czar in robes than to ask the legislature to decide when America is going to detain alleged terrorists, under what rules and with what rights?
One of Wittes' points -- which he made to me in more concise terms in my print feature a few months ago -- is basically that since we are going to have a preventive detention policy anyway, civil-liberties and human-rights groups should have focused on helping craft one that would be consistent with American values. These groups saw that as an oxymoron. Civil-liberties and human-rights groups are relieved that there won't be a preventive detention statute that makes preventive detention a permanent part of our legal system -- but the flipside, Wittes argues, is that policy will be written now anyway in a haphazard manner by unelected judges who may or may not have national security experience.
-- A. Serwer
