"The lower court has replaced settled and historic protections with confusion," writes Marri's lawyer, Jonathan Hafetz of the American Civil Liberties Union, in his brief to the court. "The Fourth Circuit has cast a pall over the physical liberty of all persons in the United States."
Mr. Hafetz says the US has long barred military action against civilians within US borders. Congress has authorized war fighting and the holding of enemy combatants overseas, but lawmakers have insisted that the criminal justice system, not the military, be used to safeguard Americans at home, Hafetz says.
Government lawyers say that shortly after the 9/11 attacks, Congress passed a law called the Authorization for Use of Military Force (AUMF). They say that law granted the president broad power to designate civilians in the US - or anywhere - enemy combatants in the war on terror. Once so designated, they may be held by the military for as long as the war on terror continues, they say.
Marri is no different than Mohammed Atta and the other 9/11 hijackers, government lawyers say. "There can be no serious doubt that Congress, in passing the AUMF, sought to authorize the use of 'all necessary and appropriate force' against aliens who have come to the United States to take an active part in al Qaeda terror operations," writes Solicitor General Gregory Garre in his brief urging the court not to take up the case.