Lincoln and Bush: Presidential War Power vs. Other Constitutional Terms

President Bush claims that his Constitutional Power to wage war provides him the power to curtail or ignore other substantive rights that the Constitution provides for individuals. Is there any basis or precedent for this claim?

Bush has made several claims of War Power, most notably that he can arrest citizens and hold them indefinitely based on his view that they are "enemy combatants," and more recently that he has the power to wire tap phone calls and electronic transmissions and surveil mosques with geiger counters without a warrant.

The Presidential claim for a "War Power" is not explicit in the Constitution, though it has been understood and affirmed by all three branches since the beginning of the Country. It is read into this phrase "The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States..."

The first Republican President, Abraham Lincoln, made a similar claim when he violated at least two explicit Constitutional requirements. First, he suspended habeas corpus without the consent of Congress, and second he issued the Emancipation Proclamation, despite requirements in the Constitution such as returning fugitive slaves. (No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due. )

Lincoln had long been against slavery, but he believed that the Federal Government had no power to ban slavery in the slave holding states. As a constitutionalist, he had not advocated any federal action regarding emancipation because he did not believe that an amendment would ever be realistic, and no other manner of ban would hold any constitutional power. Yet, in 1863 he issued the Emancipation Proclamation based on his power to wage war, and his belief that the Confederacy was being aided in the course of the war by the efforts of slaves both in the service of the military as well as in keeping the homes and farms of soldiers working. In doing so, he established the "War Power" as a powerful doctrine with a clearly important and nearly impossible to attack precedent.

Bush's holding of citizen's without charge is substantially similar to Lincoln's suspension of Habeas Corpus and therefore has at least some basis as a power of the President in wartime (though Congress never ratified Lincoln's suspension of Habeas Corpus), but is his violation of the fourth amendment similar to the use of the War Power that allowed Lincoln to free slaves?

Assuming that there is a "war power" (which seems about as elusive in the text as the right to abortion) for the president that can trump the legislation created by Congress to explicitly limit spying on American citizens, does it trump the fourth amendment too?

I think that one can argue that Lincoln is on firmer ground, primarily due to the difference between the original text of the Constitution and subsequent amendments.

Lincoln could argue that the Presidential power to wage war is co-equal with the right of Slave states to have slaves since they were written together, but the effect of Amendments is to change the preceding Constitution to the new terms. Therefore, when the fourth amendment was ratified, it changed whatever "war power" the president might have to conform with the new amendment." Had the framers intended otherwise, they would have explicitly stated that "except in time of war," or some similar language. Since the framers did not see fit to even make the war power itself explicit, it is unlikely that they intended to give the President the power to ignore amendments. So assuming that there is a "war power" that the President has, it can not trump the bill of rights.

Therefore, it seems likely to me that Bush is not on firm ground regarding his "War Power" to violate the Bill of Rights, despite the precedent of the Emancipation Proclamation.