I avoided posting on Monday’s 2-1 enemy combatant court ruling because, while I definitely feel safer with these guys behind bars, I also believe we have to respect civil rights (though I would have preferred that the media, which kept calling the EC in question, Ali al-Marri, a “resident” had made clear that he was more of a visitor harboring apparently murderous intentions towards the US.).

But wiser heads are now commenting. Richard Samp, counsel to the Washington Legal Foundation, writing a dissenting op-ed in USA TODAY, leads off this way:

“Throughout American history, enemy combatants captured by our military have been held in captivity without full-fledged trials until the end of hostilities. Monday’s 2-1 decision by a federal appeals court seeks to change that history.”

Samp notes that far from being held in a dungeon dark, a-Marri has been represented by lawyers and (obviously). His defense boiled down to this:

“[W]hile conceding that the military is entitled to detain combatants captured overseas, al-Marri contends that by managing to get into this country before being captured, he exempted himself from the normal rules of war.

“Disappointingly, two federal judges and USA TODAY agree with that position. Monday’s decision conflicts with a previous decision involving Jose Padilla, whose indefinite detention as an enemy combatant was upheld by a panel made up of three different judges of the very same appeals court. Like al-Marri, Padilla was taken into custody in Illinois after returning to this country to engage in jihad. Padilla is a U.S. citizen and al-Marri is not; one would think that al-Marri’s alien status should have weakened, not strengthened, his constitutional claims.”

Writing in National Review online, Andrew McCarthy, a former prosecutor, calls the enemy combatant decision “another blow for lawfare:”

“Strike another blow for lawfare: The use of the American people’s courts as a weapon against the American people in a war prosecuted by the president – the only public official elected by all Americans – under an authorization for the use of military force overwhelmingly passed by the American people’s representatives in congress. And all for the benefit of an alien sent here to attack us….

“[T]he majority ruled that al-Marri, a national of Qatar here on a student visa, must either be given a full-blown trial in the civilian-justice system or be released. That is, our “choice” is either to afford al-Marri – who answered directly to 9/11 mastermind Khalid Sheikh Mohammed and met personally with bin Laden – a proceeding in which he would receive lavish discovery that could be extremely helpful to the people trying to kill us, or to release him so that he could rejoin the jihad and continue trying to kill us himself.”