To the post… since Al-Marri is held for exactly the same reasons Padilla was held, i.e., the President can invoke the magic words “national security” and “terrrrrorist” and unConstitutionally suspend the rest of the Constitution, this becomes the continuation of Padilla, i.e., the most important case of our lifetimes. While we all agree it is about time once and for all for the Government to test its allegations against Al-Marri in a courtroom rather than in a dungeon, and this is a welcome development, I still have misgivings about the final outcome.

The unwelcome part is that almost certainly, I fear that both the Obama Administration and the Supreme Court will use this occasion as an opportunity to duck the Court’s deciding the ultimate underlying question, even though it need not and should not duck it as there is a doctrine of law called “capable of repetition yet evades review,” the rationale for the court to take abortion cases long after the disposition of the particularly pregnancy involved has resolved one way or another. Unless the Obama Admin. affirmatively rejects the rationale that the President can EVER do what the Bush Admin. did with Padilla and Al-Marr… then, sadly, those military kidnappings are “capable of repetition.”

Which means that, it is already the law of the hyperconservative 4th Circuit (VA, MD, NC, SC) that notwithstanding the rest of the Constitution, the President has absolute monarchial power… and the Supreme Court will have, once again, refused to disabuse us of this precedent for the rest of the country. Not a happy scenario, even if, we can hope at least, Saleh Al-Marri finally gets his day in court.