Wednesday, January 10, 2007

Presidential Power and International Mail

Over the weekend of January 5, I heard an article on National Public Radio in which new legislation regulating the postal service was being discussed. The reporter and an interviewed congressman made it fairly clear that they thought the new legislation would prevent the executive branch of the United States from opening mail without a warrant under any circumstances except a circumstance that evidenced an immediate threat to life and limb—such as a ticking package. By contrast, the President has issued a signing statement when the bill was signed noting that he reserved certain constitutional powers, including the power to open mail international mail in order to collect intelligence regarding international intelligence threats. The NPR reporter and the congressman made it clear that they seemed to think that the President and the executive branch had no right to make such a reservation. They saw the issue as the illegitimacy of signing statements. But they were missing the point.
The powers of the President vs. the Congress of the United States are meant to be defined by the Constitution of the United States. The Congress cannot reduce presidential power by legislation. They can only do so by a constitutional amendment. While there are some matters that are not an inherent area of presidential constitutional power that can be regulated by legislation, it is not proper or possible for the Congress to limit the president’s genuine constitutional powers. For example, it is perfectly appropriate that federal laws against bank robbery would also apply to the President. Merely because the President is the chief executive of the United States, he does not have power to violate federal law by robbing banks. On the other hand, there are certain powers that are inherent in being the chief executive of the United States. One of these powers is acting as commander in chief of the armed forces. If the Congress sought by legislation to take away the president’s power to direct the strategy or tactics of a war, they would be seeking power over the president which the Constitution does not entitle them to exercise or possess.
So, is the power to open international mail related to terrorist threats an inherent executive power or an act that can be regulated by federal law? I would argue that in this instance it is a matter of inherent executive power. The President of the United States is the chief executive of the United States. He is responsible for overseeing the actions of the executive branch of government. For practical purposes, the executive branch of government is comprised of all government employees and armed service personnel who effectively carry out the plans, policies and laws of the United States. The do so under the guidance and oversight of the president of the United States. For hundreds of years, military and civilian intelligence has been conducted by the executive branches of governments and overseen by the chief executives or their delegated representatives of various countries. Few countries have such pure parliamentary supremacy that the legislature is the direct overseer of the all intelligence gathering whether military or civilian. Here in the United States we do not have parliamentary supremacy; we have a three-branch government. It is clear that the President of the United States as commander-in-chief is the person who oversees the gathering of civilian and military intelligence. When directives must be given or decisions made, it is the President who has the last word, not the Congress of the United States. If the Congress does not like what the President is doing, they can cut off funding. They cannot simply direct orders to the intelligence gathering apparatus by fiat or by legislation. Intercepting mail and reading the contents is a traditional intelligence gathering activity and has been so since the existence of mail.
Here in the United States, we have taken steps to protect our citizens by enshrining in the Constitution a right to be free from unreasonable searches and seizures. It says in the Constitution that this is based on a right to be secure in our papers and property. The Supreme Court of the United States protects this right through the exclusionary rule. If the government opens your mail and discovers that you have violated the law, it will not be able to send you to prison or fine you based on its discovery because that discovery will be inadmissible in a court of law. That is the mechanism by which the right to freedom from illicit search and seizure is protected. But notice too that the protection is one against unreasonable searches and seizures. Normally, a warrant is required in the context of domestic law enforcement searches and seizures unless circumstances require an immediate search for the safety of the officers and the public (such as when a person is arrested based on probable cause).
When it comes to international espionage or acts of war by international terrorists, the President and his intelligence gathering apparatus are more than justified in opening and reading mail to counteract the efforts of international terrorists—particularly when we know that those international terrorists not only exist, but are engaged in an act of war against the United States. The process of obtaining warrants is well suited to individual domestic law enforcement cases. But it is completely unsuited to the massive review of international correspondence from places like Pakistan or Iran for the purposes of combating international terrorism. To require a warrant for such intelligence gathering is to effectively prevent intelligence gathering from taking place. It would endanger the security of the United States during this current period of international armed conflict.
Here a current struggle exists that justifies, nay requires, interference with the mail. The interference with the mail is not “unreasonable” under the Constitution because it is required for the security of the republic. Spying on international mail does not interfere with the rights protected and secured by the Constitution against unreasonable search and seizure not only because the search is reasonable, but because the exclusionary rule will prevent the prosecution of any citizen of the United States or person within the criminal jurisdiction of the United States based on evidence obtained without warrants. The spying is only effectual for the war and not effectual for judicial acts. As a result, those spied upon may find themselves subsequently the target of a warrant if their illicit acts are discovered. Or they may find themselves the target of military action when that is appropriate. But they will not find themselves the target of criminal prosecution without information gathered by a warrant.
In the near future, we are likely to see yet another attack on Presidential power. The democrat Congress appears to be opposed to the administration’s military actions in the Middle East including the war in Iraq. While Congress has the power to reduce funding and effectively undermine and unsupport our troops in the Middle East, it does not have the power to make tactical or strategic decisions about the war. Those powers belong to the President as commander in chief. It will be interesting to see if the Congress attempts to usurp power further by passing legislation designed to change tactics or strategy in the international struggle for Iraq, Afghanistan and other strategic footholds in the Middle East. One can only hope that after the democrats claimed that they were seeking power in order to protect the rights of Americans under the Constitution and to reform the supposed power grabbing policies of the republicans, that they will not themselves seek to grab illicit power contrary to the text of the Constitution by trying to limit presidential power through congressional legislation.

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