Mr Ashcroft said there was legal authority "under the laws of war and clear Supreme Court precedent, which establishes that the military may detain a United States citizen who has joined the enemy and has entered our country to carry out hostile acts".

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The California Supreme Court later ruled that Newsom had overstepped his authority, although the legal fight over the larger constitutional question has yet to be resolved.

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Genachowski, a former law clerk to Supreme Court Justice David Souter, seems reluctant to assert more authority in the face of this legal decision.

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