[aristeides]

In re Quirin (1942) upheld treating U.S. citizens as enemy combatants, but there the government's actions were explicitly authorized by Act of Congress. The Supreme Court in Quirin didn't make it clear whether that congressional authorization was necessary for its decision, and legal scholars have argued about the matter since. Looks like the majority in this Second Circuit panel held that congressional authorization is necessary.

[jwalsh07]

It appears that the majority is arguing that the Joint Resoltuion authorizing force allows the President to interdict and kill Al Qaeda jihadists but does not allow their detention.

Interesting application of judicial activism because even if that was the case, that is a political question that should be resolved by COngress, not by two members of the Second Circuit.