The constitutional defense
Look for the White House to defend the surveillance operations primarily under the presidents role as commander-in-chief of the U.S. military assigned to him by Article II, Section 2 of the Constitution.
The basis for this constitutional defense was presented to the White House as early as two weeks after the Sept. 11, 2001 terrorist attacks in a memo from then deputy assistant attorney general John C. Yoo. In his memo to the White House, Yoo asserts that the president "may deploy military force preemptively against terrorist organizations or the states that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11." Yoo goes on to state with even more certainty, "The Constitution confides in the President the authority, independent of any statute, to determine when a 'national emergency' caused by an attack on the United States exists."
Hours after the New York Times broke the wiretap story, Attorney General Albert Gonzales, in a special White House briefing on the issue stated, "The President has the inherent authority under the Constitution, as Commander-in-Chief, to engage in this kind of activity."
Two hours after the Attorney Generals statement, President Bush himself told reporters that before ordering the wiretaps, he had pondered the legality of the action. "I then went to the question, is it legal to do so? I swore to uphold the laws. Do I have the legal authority to do this? And the answer is, absolutely," he said, adding, "Article II of the Constitution gives me that responsibility...to protect our country." Clearly, the inference of the statement was that if the Constitution gives the president the responsibility, it must also give him the power necessary to protect the country.
Is the constitutional defense valid?
The Constitution's assignment of the president as the "Commander-in-Chief" has long been interpreted as giving the president the authority to command all members of all branches of the U.S. Military.
The wiretaps in question were established and monitored by the National Security Agency (NSA). While not a branch of the U.S. Military, NSA employs a substantial number of military personnel. The NSA serves as a training resource for the Department of Defense and selected NSA employees attend the various war colleges of the U.S. Armed Forces. It is, therefore, entirely possible that the wiretap operations were conducted by military personnel. This would add validity to Attorney General Gonzales' argument that the wiretaps were legally ordered under Article II, Section 2 of the Constitution.
Is there historic precedence?
President Bush's wiretaps are certainly not the first case of a president suspending certain civil liberties during wartime. After the Japanese attack on Pearl Harbor on Dec. 7, 1941, representatives of the western states pressed Congress and President Franklin D. Roosevelt to have Japanese Americas removed from the west coast. When the Department of Justice objected on constitutional and ethical grounds, President Roosevelt issued Executive Order No. 9066 and directed the U.S. Army to conduct the transportation of more than 120,000 Japanese Americans to interment camps. Most of these individuals were either U.S. citizens, or had permanent resident alien status. They were detained for up to 4 years without due process of law or ever being presented with any factual evidence against them.