A living constitution or a suicide pact? Part Two

The Washington Post’s editorial board weighs in on the al-Marri decision. The Post “is skeptical about some of the legal reasoning by the majority, in particular its conclusion that, under the law of war, Mr. Marri could not be an enemy combatant because al-Qaeda is not ‘the military arm of an enemy nation.'” The Post is being kind — this conclusion makes no sense.
The Post also finds “the court’s revulsion at the administration’s position” to be “understandable.” The job of the court, though, is to reach sound decisions regardless of any “revulsion” it may feel.
That said, I do question the military’s treatment of al-Marri (or Mr. Marri, if the Post prefers). The military has held al-Marri for years without ever having adjudicated his status (although it told the court he was “awaiting” such an adjudication). I don’t believe al-Marri is entitled to trial in federal court, and presenting a federal court case against him based on evidence obtained from the interrogation of Khalid Sheikh Mohammed and others seems like a very bad idea. However, the military has its own procedure for adjudicating al-Marri’s case and, unless I’m missing something, should have used it to do so long ago.

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