Horace Cooper

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?”

It is true that Congress has authority in national security matters as Article I of the Constitution makes clear. Congress is given explicit authority “to declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.”  Its authority also includes funding and organizing the military. Furthermore, Congress also enjoys other international authority, such as legislating international commerce, punishing piracy and enacting immigration laws.   

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.

Horace Cooper

Horace Cooper is a legal commentator and a Senior Fellow with the Institute for Liberty.