Utah Republican Sen. Orrin Hatch, who is also a member of the Intelligence Committee, said he had been given details about the program and was satisfied — but not absolutely certain — that it is constitutional. "I am familiar with the program," Hatch said, "and I have to say that I agree with [the] proposition that the Congress cannot take away the president's authority under Article Two of the Constitution."
-From National Review
Article II, Section 2, Clause 1: "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; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment. "
That's the only mention in Article II about being Commander in Chief. And there's nothing about making up, or being above, the laws. War, or no war.
Oh, and only Congress can decalare war (Article I). The last time they did that was December 9, 1941 (Germany).