Presidential War Powers in a Never-Ending ‘War’

Document Type


Publication Date

Fall 2006

Publication Title

ILSA Journal of International and Comparative Law


Politics and Government


1. INTRODUCTION On December 16, 2005, the New York Times ran an article revealing that the Bush Administration had, in the months immediately following the attacks of September 11, secretly authorized the National Security Agency (NSA) to monitor the international telephone and email communications of "hundreds, perhaps thousands, of people inside the United States without warrants in an effort to track possible 'dirty numbers' linked to al Qaeda." 1 The resulting firestorm from the disclosure was extremely fierce as civil liberties activists, scholars and pundits from all political perspectives weighed in on the legality and constitutionality of the surveillance program. President Bush and members of his administration, including United States Attorney General Alberto Gonzales, quickly offered arguments supporting the operation. The main thrust of the administration's defense--and the argument considered herein--of the NSA surveillance program is that "the Authorization for the Use of Military Force (AUMF) [passed by the United States Congress on September 18, 2001 in response to the September 11 attacks] places the President at the zenith of his powers in authorizing the NSA activities." 2 In essence, the administration is arguing that by authorizing the President to use force against those who were involved in any way in the 9/11 attacks on the World Trade Center and the Pentagon, Congress declared war against al Qaeda and other terrorist organizations, and by doing so gave the President power to "intercept international communications into and out of the United States of persons linked to al Qaeda or ...