Months after Sept. 11, President Bush secretly authorized the National Security Agency to monitor electronic conversations involving Americans and others inside the United States purportedly to search for evidence of terrorist activity without using court-approved warrants ordinarily required for domestic spying. The Bush administration views the operation as necessary to monitor communications that may disclose threats to the United States. The president’s claim of legal authority rests on the Constitution and the collective statutes passed by Congress authorizing him to track down and disrupt the terrorist network Al Qaeda.

Critics charge that this action is illegal and a violation of our civil liberties. And furthermore, since Congress has the power to declare war, they ask how the president can claim authority to order electronic surveillance or anything else under the aegis of the “war on terror?”

This authority, however, is not exclusive; and moreover, it’s not even the most powerful grant of national security authority in the Constitution. You see, Article II of the U.S. Constitution vests in the presidency the commander-in-chief power and all of the other executive power of the United States.

There is a reason the U.S. president is the single most powerful executive of any democratic government. The combination of his foreign relations powers, his commander-in-chief powers, his emergency powers and his executive order authority makes him ideally suited to effectuate America’s national security interests. And war-making is the quintessential executive responsibility. 

By its nature and design, the executive power is more agile and responsive. By its nature and design the legislature is deliberative and rigid.

Both logic and history dictate that the executive’s primacy in national security matters be recognized. Is it any wonder that Congress has only used its formal war-making power five times, yet U.S. presidents have ordered military forces into combat zones more than 100 times? And in the latter part of the 20th century, presidents have significantly expanded this behavior. For two reasons: our ability to recognize national security threats is greater now, as the actual threats are greater. To argue in the face of this reality that the response to this challenge must be handled primarily by the legislature or even the judiciary is to unilaterally disarm ourselves against a clear and gathering threat.    

Even the Supreme Court recognizes that it isn’t capable of taking the lead on national security matters. Twice the Supreme Court was given an opportunity to place limits on the president’s national security authority to engage in electronic surveillance, and twice the Court has declined to do so. In each instance, the Court explicitly stated that their rulings on the 4th Amendment did not apply to cases involving national security.  

No, Congress by its design and make up is ill-suited for taking the lead role in this task. And to leave this authority in the hands of the courts would be the quintessential example of a “constitutional suicide pact.”

Ironically, many historians credit the phrase “The Constitution is not a suicide pact” to the Supreme Court. The author of this phrase is none other than that uber-executive Abraham Lincoln. Historian James G. Randall acknowledges, “No president has carried the power of presidential edict and executive order (independently of Congress) so far as [Lincoln] did.”

Remember President Lincoln? While many may not be aware, he’s the father of the military tribunal designed to try enemy combatants. He did so, arguing that they had the capacity to act quickly, to gather intelligence through interrogation, and to prevent confidential life-saving information from becoming public.  It was also President Lincoln who declared martial law and who suspended the Writ of Habeas Corpus.  Continued...