[Kozak]

Congress gave the president the equivalent of a declaration of war in the authorization to prosecute the war on terror following 911.

However I did at the time wish the president had requested a good old fashioned declaration of war just to prevent such legal hair splitting.

[Jubal Harshaw]

I did at the time wish the president had requested a good old fashioned declaration of war just to prevent such legal hair splitting.

Me too. I wrote a brief essay on FR, at the time, asking for a declaration of war. One of the reasons I gave was to make it clear that things were temporarily different during the time of war. Like you, I foresaw that we might have problems like this.

Nevertheless, Congress did NOT declare war. That's just a fact. Can't change it by talking about it on FR. They authorized force, but DID NOT declare war.

Because Congress authorized the use of force, I'd be inclined to believe that, if these exact people were in a combat zone, that the executive has the authority to kill them. It does not appear, however, that the executive was granted the authority to block US citizens from returning to the USA. That's something that was not done even the past when war was actually declared (the Japanese / German / Italian exclusion zones did not bar American Citizens from living in the USA, only excluded them from certain zones).

To summarize:

1. we are not at war
2. even if we were at war, it's not clear that this action on the part of the feds would be legal (though there would likely be a much stronger argument to be made)
3. in any case, it appears that the executive branch overreached it's authority.