The latest "imperial presidency" controversy in Washington involves President Bush's statement, in conjunction with signing a postal reform bill, claiming what the New York Daily News breathlessly calls "sweeping new powers to open Americans' mail without a judge's warrant."
As usual, this turns out to be a tempest in a teapot — notwithstanding the tut-tutting from Senators Susan Collins, Chuck Schumer and Hillary Clinton, as well as NYC Mayor Michael Bloomberg.
To reiterate, the Fourth Amendment prohibits unreasonable searches, not warrantless searches. Consequently, the courts have recognized for years that exigent circumstances justify agents in conducting a search without a judicial warrant.
Furthermore, the president has inherent authority under Article II of the constitution to conduct warrantless searches for national security purposes — at least when the nation is threatened by a foreign power. Thus, for example, did Clinton administration Deputy Attorney General Jamie Gorelick quite correctly insist, in 1994 testimony before Congress, that the president maintained the power to conduct warrantless national security searches even though Congress was then expanding FISA (the Foreign Intelligence Surveillance Act which governs national security wiretaps) to cover physical searches.
There is, as White House spokesman Tony Snow explained, absolutely nothing new about this.
From a political standpoint, it's certainly worth asking why the White House thought it would be a good idea for the president to issue a signing statement claiming the power to open mail without a warrant in exigent circumstances. After all, if he has the power he has it, whether he talks about it in a signing statement or not — so all the signing statement has accomplished is a few days of media attacks and maybe some subpoenas from and indignant hearings by the Democratic congress in the coming weeks. But this is, or at least it should be, much ado about nothing.
Just another example of the Bush administration and their ineptitude in understanding how they are viewed in the media and by their opposition. As mentioned in your post, many of the attacks on the current administration that cried foul over expanding executive powers and invasions of privacy are baseless as the constitution (sometimes explicitly) grants these actions in times of war and dire circumstances of national security. The Bush administration had no reason to sign a statement endorsing actions that presidents as far back as Abraham Lincoln have utilized in securing the nations safety. The Bush administration has long needed someone in the White House who is much more strategic when orchestrating their actions and statements. Before ever releasing a statement or executive reform bill there should be thoughtful planning so that any opposition is weakened and squelched before ever getting a chance to criticize. Instead of making their own case for the neccessity of opening dangerous mail suspected to involve terrorists and explaining the inherent legality of such actions as per our own constitution, Bush's team puts out a redundant message like a slow softball over the plate. What that says to me is "we aren't sure that everyone agrees that the constitution allows this, so we're going to make an 'official statement' endorsing such actions." Of course Bush singing this reform bill will be criticized because it fits in perfectly with the template of every other hit piece on the administration, many of which are baseless when the constitution and historical precedent are taken into account. Bush has the legal authority.
Tony Snow has done a much better job at making a nuanced approach to getting out the administrations message, but they are still severely lacking in the PR department.
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