Haven't we seen this before?
"FROST: So what in a sense, you're saying is that there are certain situations, ... where the president can decide that it's in the best interests of the nation or something, and do something illegal.
NIXON: Well, when the president does it that means that it is not illegal.
FROST: By definition.
NIXON: Exactly. Exactly."
To follow up:
"FROST: But when you said, ... "If the president orders it, that makes it legal", as it were: Is the president in that sense: is there anything in the Constitution or the Bill of Rights that suggests the president is that far of a sovereign, that far above the law?
NIXON: No, there isn't. There's nothing specific that the Constitution contemplates in that respect. I haven't read every word, every jot and every title, but I do know this: That it has been, however, argued that as far as a president is concerned, that in war time, a president does have certain extraordinary powers which would make acts that would otherwise be unlawful, lawful if undertaken for the purpose of preserving the nation and the Constitution, which is essential for the rights we're all talking about."
What I think we can get from this is that if we want to keep the President/Executive branch lawful we have to be *way* more vigilant in denying the President the fig-leaf of there being a "war".
By definition up to the 50's the "war on terror" is not a traditional "war". How will we ever win? How will we ever know we have won? How can any objective person prove it? Can Al-Qaida surrender? Would that do it?
Or is this a case where we have we always been at war with Eastasia?