I don't think the text of the Constitution supports your position. The Constitution delegates to Congress:
The Congress shall have Power …
"To declare War …
"To raise and support Armies …
"To provide and maintain a Navy;
"To make Rules for the Government and Regulation of the land and naval Forces;
"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
"To provide for organizing, arming, and disciplining the Militia....
--U.S. Constitution
(Article 1, Section 8)
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....
--U.S. Constitution
(Article 2, Section 2)
Most war powers were given to Congress because the Founders feared a too-powerful Executive who, history has shown, are too often prone to commit their governments to war
Mr. M(adison) and Mr. Gerry moved to insert 'declare,' striking out [the legislative power to] 'make' war; leaving to the Executive the power to repel sudden attacks.
"Mr. Sharman [Sherman] thought it stood very well. The Executive shd. Be able to repel and not to commence war....
"Mr. Gerry never expected to hear in a republic a motion to empower the Executive alone to declare war....
"Mr. Mason was agst giving the power of war to the Executive, because not (safely) to be trusted with it.... He was for clogging rather than facilitating war; but for facilitating peace. He preferred 'declare' to 'make'."
--Constitutional Convention
(Madison's notes on the Constitutional Convention, 1787)
The constitution supposes, what the History of all Govts. demonstrates, that the Ex. is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the Legisl: But the Doctrines lately advanced strike at the root of all these provisions, and will deposit the peace of the Country in that Department which the Constitution distrusts as most ready without cause to renounce it.
--James Madison
(Letter to Thomas Jefferson, April 2, 1798)
In this distribution of powers the wisdom of our constitution is manifested. It is the province and duty of the Executive to preserve to the Nation the blessings of peace. The Legislature alone can interrupt those blessings, by placing the Nation in a state of War.
--Alexander Hamilton
(Pacificus #1, June 29, 1793)
[W]ar is a question, under our constitution, not of Executive, but of Legislative cognizance. It belongs to Congress to say - whether the Nation shall of choice dismiss the olive branch and unfurl the banners of War.
--Alexander Hamilton
(Americanus #1, January 31, 1794)
Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This, our [1787] Convention understood to be the most oppressive of all Kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us.
--Abraham Lincoln
(Letter to William Herndon, February 15, 1848)
We're told we're in a state of war so that the explicit and clear language of the 4th Amendment requirement that no warrants shall issue "but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized" does not apply...in other words, the President's authority as commander in chief of the armed forces conveys authority to ignore the 4th Amendment during wartime. First...the 4th Amendment does not contain any exceptions to its applicability during wartime...so its a tough argument to make that the Founders would have believed violations of it to be Constitutional at any time.
More importantly, even if the 4th Amendment does not apply during wartime...are we even in a war? What is this War on Terror? When do we win? How do we win? When there's no act of terrorism in the world for a certain period of time? I suspect that the "war" will never end...which, if the argument supporters of warrantless wiretapping are making is true, means the 4th Amendment is no longer of any effect...along with any other Constitutional provision that any President determines to be in conflict with his (or her) authority as "commander in chief of the armed forces"
That may be OK while President Bush is in office...but what about when a President Rodham takes office? Do you really want the executive to have the authority to ignore clear Constitutional limitations on executive power?
I don't blame the President for any of this...its the feckless Congress that deserves our contempt. Its up to Congress to make a clear statement as to the scope of this war and who the enemy is...but Congress is happy to turn its authority over to the President by authorizing military force against whoever the President determines to be a threat whenever the President so decides. The Congress is happy to just sit back and either take credit for the war or criticize the President depending on how his military adventures are going at any one time. That's not how it was supposed to be
I'm really hoping that you don't mean to imply that the clause you highlighted was made in reference to "The President shall be Commander in Chief..." clause. That would be a disastrous mis-reading of the Constitution, not only from the standpoint of English grammar, sentence construction and punctuation, but also an error in regards to the intent of the founding fathers. That clause only applies to its immediate antecedent, "and of the Militia of the several States". That has been settled law for over 200 years.
That is incorrect and nearly opposite of what occurred. At the time of the Constitutional convention, they were trying to undue the disaster of the Articles of Confederation, which limited the authority of the national government so severely that it was an impotent shell that could accomplish nothing.
They were so sure of the power they wished to impart to the national government through the new Constitution, that they founded it primarily on the basis of a separation of powers, so that no branch could any longer infringe on the authority of another branch. To limit abuses of those new powers, the founding fathers included carefully delineated powers and a limited system of checks and balances, but the primary focus of the Constitutional Convention was empowerment.
And more to the point of your quote, the war powers were not "mostly" given to Congress, they were divided more or less equally, along the lines of the roles assigned to each branch. Congress was given the power to declare war, while the executive, as Commander-in-Chief, was given the power to make war.
Even your quotes from James Madison's Constitutional Convention Notes, show this to be the fact. Read them again and note that the primary debate was whether to give the executive the power to initiate war through the power of declaring war. Of course that motion failed, yet there was no simply no debate raised by anyone against the necessity of empowering the executive to fight a defensive war, as was clearly noted in those quotes you provided.
Pointedly, it was no less than James Madison who led the ultimately successful effort to limit Congressional authority to the much narrower "declare war" provision, rather than the far broader "make war" provision, which was done specifically so that the executive would maintain the authority to fight a defensive war.
In deed, it was James Madison who as President fought the final two Barbary Wars without a formal Declaration of War. Madison did this because, as the "Father of the Constitution", he knew that the "declare war" clause did not prevent the Commander-in-Chief from engaging the military in armed conflict, once the United States had been attacked.
And let there be no doubt that in the present case, the President is fighting just such a defensive war. America was attacked by foreign terrorists on 9-11 and in fighting this defensive war, the President is in no way limited to merely repelling an attack solely at our own doorstep, but as Madison did, once attacked, the President may defensively pursue both the attackers, as well as any who aid, conspire with, sponsor, or provide sanctuary to those attackers, even if that includes the necessity of invading and subduing a foreign nation in that process.
As you correctly note, but fail to understand the implications of, it the President who must, by the powers deliniated to that office by the Constitution, preserve and protect the "peace" of the nation. That is why matters of foreign policy, maintaining the national defense structure and foreign intelligence lie, Constitutionally, within the province of the Commander in Chief. It is opposite of prudent, necessary or "constitutional" that the Commander in Chief act as if the world is at "peace" with us simply because some foreign agent has not yet acted so as to create a need for Congress to "declare war". In fact, the Commander in Chief has every constitutional obligation to prevent foreign interests from being able to initiate such acts, before they happen, before any need for Congress to "declare war" arises. That was the whole premise of the 9/11 commission fiasco - how did we fail to "maintain the peace". That is what the purpose of a national defense structure and national intelligence operations are for. Congress can refuse to fund those structures, legislate ways in which they ought to be structures, refuse to approve the President's appointments to those structures, ask questions (hold hearings) about their operations, to better ascertain the appropriateness of requested funding, but Congerss does not operate them, does not manage them, does not run them over the head of the President and they have no power to. The DOD is not a Congressional operation.
As Boot Hill reminds you more eleoquently and thoroughly than I - congress can "declare war", but maintaining the defensive posture of nation, which includes foreign intelligence, is the Constitutional role of the Commander In Chief and it must operate and defend the nation from potential enemies whether or not there is a declared war. And, it is from the actions and by the powers of the Commander in Chief that the Constitution expects those defensive efforts to be conducted, not Congress.
We're told we're in a state of war so that the explicit and clear language of the 4th Amendment requirement that no warrants shall issue "but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized" does not apply...in other words, the President's authority as commander in chief of the armed forces conveys authority to ignore the 4th Amendment during wartime.
The 4th amendment requirement has been, continuosly, interpreted as relavent to "law enforcement" activities and not to the collection of foreign intelligence. The NSA and all the "electronic signals" information it collects could not even exist, in practical terms, under your misguided idea of applying the "warrants" clause of the 4th amendment to foreign intelligence. The fact that one-half of a conversation, to or from, a suspected foreign operative, begins or ends on United States soil does not consitute "domestic spying", anymore than FDR's intercepting of all telephone communications leaving or coming into the United States, to or from Japan or Germany, constituted "domestic spying". What J.Edgar Hoover and Bobby Kennedy did without warrants in the case of Martin Luther King constituted "domestic spying", an abuse of federal powers in law enforcment and was in violation of the intent of the 4th amendment requirement for a warrant; but Bobby's warrantless intercepts of conversations between Castro and phone locations in the United States was not.
You have this matter 180 degrees off balance. It is politicians in Congress and their little bruised egos, lacking the Constitutional powers of the Commander Chief, who have continually tried to limit the powers that the Constitution and the founders deliniated to the chief Executive. The "dictator" charge is always dragged out by the little dictators in Congress, deflecting from the fact that the President and the President's successors are and will be the highest elected officials in the nation, representing all the people. That is why the people, in have generally supported their Presidents in matters of national intelligence issues, preferring an active defense to a timid, bumbling and ineffectual congress. In fact, the national leaders who have historically made the grade, in the eyes of the people, were leaders who, whether in war or in peace, led the country, above following Congress. Weak Presidents, like Carter and Clinton have, by historians and the people, failed to make the top grades, and rightly so - they failed to "actively" defend the nation.