How does Article II lead to the unchecked executive?

AFAIK, the president cannot "call himself into service". It usually takes someone outside of his authroity like Congress.

And also, the FISA court would be happy to provide a warrant for that person.

If we were actually "at war," legally, with al Qaeda, that person would be guilty of treason. QED.

Teece, if a US citizen is an avowed member of al Qaeda, and they are in planning or implementing military action against the US, why couldn't "Bush" / America be at war with this person? Would the fact that the person was a US citizen mean automatically that it is a criminal matter, not a war matter? What was the US Civil War? How did Lincoln do it? It just seems a lucky twist of fate that most of America's wars have not been on American soil.

And complex or simple legal attacks on this reasoning aside, at face value the President at least has a point which is that the legislative branch has presented him with two conflicting legal authorizations Nonsense. In his role as commander in chief, of course he can kill terrorists threatening the US. In his role as commander in chief, though, he is not given permission to violate the Constitution willy-nilly. It's patently absurd to assume that Bush's powers as boss of the army grant him the power to do whatever he wants in the US. Bush can not be at war with US citizens, so his notion that his role as commander in chief grants him a way to avoid the 4th Amendment is stupid. It's not even slightly contradictory. Really, there is no honest case to be made for GWB here. It's important not to lose sight of that. The whole thing is pure FUD, as mentioned above.

jellicle, where in my question do you see me wondering if this program is legal? Clearly, it is not. That doesn't mean they don't have some tortured (pun intended) reasoning which they might put forth when pressed for a basis in law. The point of the question is to find out what that reasoning is.

As kirkaracha quotes it, the resolution says the President is authorized to use "all necessary and appropriate force" against anyone the President determines is a member of Al Qaeda. So I think the administration's real argument is: "You mean, you (Congress) are telling me I can go overseas and kill as many people as I want, but I can't wiretap a US citizen that I have determined is a member of al Qaeda? How does that make any sense?" And complex or simple legal attacks on this reasoning aside, at face value the President at least has a point which is that the legislative branch has presented him with two conflicting legal authorizations, and he chose to go with the one that conforms to his intentions. However the courts resolve the issue, I'm sure it will prove to be a lesson to the legislative branch that will guide how they might write a future similar resolution in the future.

Brian James - you misunderstand my post, probably because you think it was a criticism of you (it wasn't). I'm simply saying the whole intent of the Administration's argument is to create discussions like this. Where people are considering whether or not the actions in question are actually illegal. Because if you're considering that - if the question is not firmly decided - then public opinion can't progress to the next stage, which is "so what should be done about it?". It's classic FUD. Recognizing the tactic, and minimizing the distraction created thereby, is an important thing in public discourse. There are literally hundreds of areas where the Bush Administration has deployed unserious arguments (arguments that even they don't believe for one second) in attempts, mostly successful, to distract the public and chattering classes from important issues of the day and to cast doubt on areas where there is honestly no doubt. It's a variant of the campaign smear attack - ("Did Candidate X rape and kill three young boys? There's no evidence for it, but it might have happened - let's have a free and open discussion about it!") - not an honest argument, and it deserves the same consideration, which is to say, none.

The passage from the Authorization for the Use of Military Force that Brian James cites is in a whereas clause, which http://judiciary.senate.gov/testimony.cfm?id=225&wit_id=434:Under traditional principles of statutory construction, these provisions have no binding legal effect. Only material that comes after the so-called "resolving clause"--"Resolved by the Senate and House of Representatives of the United States of America in Congress assembled"--can have any operative effect. Material set out in a whereas clause is purely precatory. It may be relevant for the purpose of clarifying ambiguities in a statute's legally operative terms, but in and of itself such a provision can confer no legal right or obligation.Also, this is the significant part of the Authorization for Use of Military Force:That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.The way I read it, this only authorizes military force against nations or organizations that were either involved in the September 11 attacks or harbored organizations or persons that were involved in the attacks. The Authorization for Use of Military Force also says "Nothing in this resolution supercedes any requirement of the http://www.yale.edu/lawweb/avalon/warpower.htm."