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http://cryptome.org/0005/usinfraspy-law.pdf

exerpt...

In January 2008, the Bush Administration established the
CNCI by a classified presidential directive [16]. CNCI’s
authority – like any other executive action – is based on
statutory or constitutional law. Several legal authorities
provide the basis for executive actions that respond to
cyber threats. These include various criminal code provisions
that establish federal cyber crime offenses and authorize
prosecution; statutes such as the Federal Information
Security Management Act (FISMA), which directs executive
agencies to establish specific administrative procedures to
protect against cyber attacks; general statutes authorizing
executive management of federal agencies; and executive
powers inherent in the CommanderinChief
Clause and
other constitutional provisions.
Most criminal provisions are reactive in nature. They
generally do not authorize preventative measures to defend
against cyber threats, and jurisdictional and practical hurdles
often hamper law enforcement investigations of foreign
hackers [16]. In contrast, FISMA and related statutes take a
proactive approach to dealing with cyber intrusions. Statutes
related to the executive management of the civil service
can authorize changes to government Internet portals and
changes in agency personnel, but they do not explicitly cover
cybersecurity issues.
The President’s foreign affairs powers may provide an
inherent constitutional authorization for executive actions
related to cybersecurity [16]. Given the nature of cyberspace,
it is difficult to distinguish between foreign and domestic
affairs. Thus, the President’s oathbased
obligation to defend
the nation from imminent threats offers a constitutional
basis for executive action to defend against cyber threats.

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