Gavel Grab

A new commentary rips the Obama administration’s decision against working with Congress for a new preventive detention system for terrorism suspects and contends this will likely give Justice Anthony Kennedy, the Supreme Court’s swing vote, an outsized role on the issue.

The op-ed piece in the Washington Post, headlined “Obama’s Dick Cheney Moment,” is written by Benjamin Wittes and offers a counterpoint to a commentary highlighted earlier in Gavel Grab, written by Glenn Greenwald and published by Salon. Greenwald’s analysis was entitled, “Victory on preventive detention law: in context.”

Wittes writes that detention rules ultimately will be written by the judiciary. Since lower court judges have disagreed on key issues, and due to the ideological split on the high court, Kennedy likely will “play a disproportionate role in writing the rules of the road,” the column contends. That doesn’t sit well with Wittes, who asks:

“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?”