The Supreme Court previously granted certiorari to the appeal of Ali Saleh Kahlah al‐​Marri, the only enemy combatant taken into custody domestically and detained in a military brig. The Court of Appeals for the Fourth Circuit held that he could continue to be detained as an alleged al Qaeda operative without trial. The Supreme Court reversed its decision to hear the case today.


The Obama administration moved him back into the civilian criminal justice system, and denied that it was doing so to keep the lower domestic detainee precedent intact. It argued that denying review while vacating the Fourth Circuit’s decision would serve the ends of justice. Apparently, the Court agreed.


As I have said before, domestic counterterrorism is a law enforcement task, not a military one. The Washington Post and New York Times both wanted the Supreme Court to hear the case and rule that domestic detention is unconstitutional.


Obama’s actions seem to indicate either a lack of interest or a disagreement with the sweeping power claimed by President Bush, that presidents can simply whisk off any person in the U.S. — including citizens — to a military prison without a trial. But now that the Supreme Court has declined to rule on the executive’s claims in this case, we will not have the benefit of a Supreme Court precedent repudiating the executive’s overreach. Whether or not Obama tries to repeat what Bush did, another president will likely try to do it again. Not good.