March 6, 2009 1:02PM # Supreme Court Will Not Hear al-Marri Appeal By [David Rittgers](https://www.cato.org/people/david-rittgers) --- SHARE The Supreme Court previously [granted certiorari](http://www.supremecourtus.gov/orders/courtorders/120508zr.pdf) 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](http://pacer.ca4.uscourts.gov/opinion.pdf/067427A.P.pdf) that he could continue to be detained as an alleged al Qaeda operative without trial. The Supreme Court [reversed](http://www.scotusblog.com/wp/al-marri-overruled/) its decision to hear the case today. The Obama administration [moved](https://www.cato.org/2009/02/26/trying-al-marri/) him back into the civilian criminal justice system, and [denied](http://www.scotusblog.com/wp/us-denies-manipulating-al-marri-case/) that it was doing so to keep the lower domestic detainee precedent intact. It [argued](http://www.scotusblog.com/wp/wp-content/uploads/2009/03/doj-al-marri-reply-3-4-09.pdf) that denying review while vacating the Fourth Circuit’s decision would serve the ends of justice. Apparently, the Court agreed. As I have [said](https://www.cato.org/2009/01/09/the-measure-of-our-own-liberties/) [before](https://www.cato.org/2009/01/29/al-marri-is-probably-a-terrorist-%E2%80%94-we-should-have-tried-him/), domestic counterterrorism is a law enforcement task, not a military one. The [*Washington Post*](http://www.washingtonpost.com/wp-dyn/content/article/2009/03/05/AR2009030503276.html) and [*New York Times*](http://www.nytimes.com/2009/03/06/opinion/06fri3.html?_r=1&scp=2&sq=al-marri&st=cse) 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. ##### Related Tags [Constitutional Law](https://www.cato.org/constitutional-law), [Robert A. Levy Center for Constitutional Studies](https://www.cato.org/robert-levy-center-constitutional-studies) [![Creative Commons License](/build/cato_2020/images/creative-commons.svg)](http://creativecommons.org/licenses/by-nc-sa/4.0/) This work is licensed under a [Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License](https://creativecommons.org/licenses/by-nc-sa/4.0/).