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The Law and the President
In a national emergency, who you gonna call?

EMERGENCY POWER FOR SUCH UNDERHANDED activities as spying makes Americans uncomfortable and upset. Even those who do not suffer from squeamish distaste for self-defense, and do not mind getting tough when necessary, feel uneasy. A republic like ours is always more at ease in dealing with criminals than with enemies. Criminals violate the law, and the law can be vindicated with police, prosecutors, juries, and judges who stay within the law: At least for the most part, the law vindicates itself. Enemies, however, not merely violate but oppose the law. They oppose our law and want to replace it with theirs. To counter enemies, a republic must have and use force adequate to a greater threat than comes from criminals, who may be quite patriotic if not public-spirited, and have nothing against the law when applied to others besides themselves. But enemies, being extra-legal, need to be faced with extra-legal force.

This home truth gets little recognition from critics of the Bush administration's surveillance activities in the war on terror. Some of its defenders, too, seem unaware of the full extent to which the Constitution addresses the problems we face today and how useful and relevant its principles prove to be.

One can begin from the fact that the American Constitution made the first republic with a strong executive. A strong executive is one that is not confined to executing the laws but has extra-legal powers such as commanding the military, making treaties (and carrying on foreign policy), and pardoning the convicted, not to mention a veto of legislation. To confirm the extra-legal character of the presidency, the Constitution has him take an oath not to execute the laws but to execute the office of president, which is larger....