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.
He says the AUMF was written to "protect United States citizens both at home and abroad."
Marri's lawyers argue that the government's power to capture prisoners on a battlefield and hold those prisoners for the duration of hostilities does not apply to civilians in the US, who are far removed from any actual battlefield.
Government lawyers counter that the battlefield in the war on terror extends worldwide, including within US borders. Al Qaeda operatives may be held by the US military regardless of where they are captured, they say.
Marri is a citizen of both Saudi Arabia and Qatar. He has been held in US custody nearly seven years. For the last five years he's been detained without charge as an enemy combatant in a 9-foot by 6-foot cell at the US Naval Consolidated Brig in Charleston, S.C.