Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
The NY Daily news reports that President Bush has attached yet another signing statement to a bill that reduces the protections against government spying, this time declaring that the government can open our mail.
President Bush has quietly claimed sweeping new powers to open Americans' mail without a judge's warrant, the Daily News has learned.The President asserted his new authority when he signed a postal reform bill into law on Dec. 20. Bush then issued a "signing statement" that declared his right to open people's mail under emergency conditions.
That claim is contrary to existing law and contradicted the bill he had just signed, say experts who have reviewed it.
But wait, there's more:
Experts said the new powers could be easily abused and used to vacuum up large amounts of mail."The [Bush] signing statement claims authority to open domestic mail without a warrant, and that would be new and quite alarming," said Kate Martin, director of the Center for National Security Studies in Washington.
"The danger is they're reading Americans' mail," she said.
"You have to be concerned," agreed a career senior U.S. official who reviewed the legal underpinnings of Bush's claim. "It takes Executive Branch authority beyond anything we've ever known."
The White House claims that the signing statement doesn't change anything:
"In certain circumstances - such as with the proverbial 'ticking bomb' - the Constitution does not require warrants for reasonable searches," she said.
Which leads to the obvious question: why make it? If such authority already exists, why declare it anew? It simply doesn't make sense. And the language of the signing statement is far more vague than current law. What constitutes "exigent circumstances"? Whatever Bush says, that's what. And this is the same man who has claimed to have the unilateral and unchallengable authority to suspend habeas corpus in individual cases, something absolutely forbidden by the Constitution.
Under current law, the government can, of course, open our mail. But they have to get a warrant from a judge, which means they have to show probable cause. Unless it involves intelligence gathering, then it only has to meet the FISA standards, which already allows the government to undertake a search and then retroactively ask the FISA court, acting in secret, to approve the warrant. But even that miniscule level of protection is too much for the Constitution-Shredder-in-Chief. At least having a Democratic Congress means they're a lot more likely to challenge this kind of thing rather than roll over and play dead as the Republicans did (and yet more hypocrisy: remember the wailing and gnashing of teeth about our freedoms when Clinton wanted a portion of the powers now claimed by Bush in the early 90s?).
Comments
It's pretty obvious that this was an opportunity to make a signing statement "legalizing" what the administration has already been doing. The Republicans are always whining about "opening the floodgates of litigation," yet these signing statements are going to be in the courts for years unless the SCOTUS makes them all unconstitutional in one fell sweep, and I don't see that happening with the court as it's currently constituted.
TT
Posted by: ThomasTallis | January 5, 2007 10:33 AM
Can we start talking about impeachment now?
Posted by: J-Dog | January 5, 2007 10:51 AM
Bush uses his signing statements to invalidate (or rewrite) parts of laws that he doesn't want to enforce. Correct me if I'm wrong, but line-item vetoing has already been declared unconstitutional, right? I think Bush is trying to do an end-run around Congress, the Courts, and the constitutionally mandated separation of powers between the 3 branches of government.
It's obvious why Democrats are opposed to Bush's signing statements... but why aren't true conservatives opposing it also? Certainly they can't think that there will never be a Democratic President ever elected again. Do they really want to risk giving Obama, Hillary (or whomever) that much power?
Posted by: doctorgoo | January 5, 2007 11:00 AM
"Can we start talking about impeachment now"
Im pretty sure people have been talking about it for some time. Is there anything anyone do about it?
Posted by: jba | January 5, 2007 11:23 AM
"In certain circumstances - such as with the proverbial 'ticking bomb' - the Constitution does not require warrants for reasonable searches," she said.
This is true, but query: how does one know, just by looking at an envelope, whether or not opening the envelope will amount to a "reasonable search." If there is evidence that the sender or intended recipient is a terrorist or someone intending to commit a crime, presumably a warrant could be obtained using that evidence rather easily. Otherwise, no.
BTW, my partner reminded me that his father, who was a "displaced person" from the Ukraine to Germany during WWII, and who subsequently emigrated to the US, frequently corresponded from the US with his relatives in the Ukraine during at least the 1960s. The mail that he received from his relatives was obviously routinely opened, and it is doubtful that warrants had been issued. The government opening mail without warrants is not new.
Posted by: raj | January 5, 2007 11:23 AM
I will be very entertaining to hear the right wingers going ballistic about the "abuse" and "unconstitutionality" of the powers Bush has asserted the executive branch has, when a Democratic President takes office.
My question for the dittohead of the world: would you still believe it if it was President Hillary?
Posted by: celcus | January 5, 2007 11:34 AM
Turnabout is fair play.
I suggest for Bush immediate detention and extraordinary rendition to Afghanistan, delivering him to warlards for trial for war crimes.
Then when he's hanged, go read his mail.
Posted by: LemonCurry | January 5, 2007 11:38 AM
doctorgoo -
Many true conservatives are just as disgusted by this as you or I. They just get very little media play, compared to the sychophants that claim to be conservative, but are anything but.
raj -
The whole notion of opening it without a warrant is about time. Under existing law, they can open it and get a retroactive warrant. It has nothing to do with whether an individual piece of mail might help the investigation - under most circumstances, they will want to open all of the suspects mail.
Bush's signing statement just exempts him from needing probable cause at all - or needing to get a retroactive warrant. Especialy frightening when you consider that he is fine with imprisoning people without due proccess. The only thing they really need a warrant for, is if they intend to actually prosecute someone.
Posted by: DuWayne | January 5, 2007 11:39 AM
doctorgoo wrote:
Clearly so, and yes, the line item veto is unconstitutional. So are such signing statements, at least some of them that he has issued (signing statements, in and of themselves, are not; signing statements that operate as de facto vetoes are). But here's the problem: who can file suit to change it? Under judicial tradition and precedent, Congress cannot sue the executive branch for violating the Constitution. And no citizen would have standing based only on being a taxpayer. Also, the signing statements are almost always hypothetical, in the form of "I will interpret this passage to mean X if circumstances make it necessary to do Y", so we have no way of knowing if or when the President has done so.
This is where the distinction between political conservatives and intellectual conservatives is important. Political conservatives have stayed quiet on this, which they would no doubt be throwing a fit about if it was done by a Democratic president. Intellectual conservatives, like Bruce Fein for instance, have ripped Bush over it and condemned him in no uncertain terms.
Posted by: Ed Brayton | January 5, 2007 11:54 AM
Do signing statements even COUNT for anything except the President getting to vent?
Posted by: writerdddd | January 5, 2007 11:55 AM
Raj:
Under the general police power, the government has sovereign power over its borders. So yes, mail from other countries has always been subject to inspection. The issue here is domestic mail and 4th Amendment protection against arbitrary search and seizure
Posted by: kehrsam | January 5, 2007 11:59 AM
"Bush's signing statement just exempts him from needing probable cause at all - or needing to get a retroactive warrant."
I would add the words "claims to" in there somewhere. If Bush signs a statement claiming that Republicans don't have to pay tax, that doesn't make it so. The Executive branch does not have plenary power, no matter how much it wants to pretend it does. Signing statements are intended only to serve as guidelines to the executive branch in areas where the laws in question or the Constitution is unclear. They certainly cannot be used to reverse Constitutionally-passed laws or to remove Constitutionally-guaranteed rights.
Behavior like this is why impeachment must be on the table. The President is behaving lawlessly and needs to be checked. Sadly, individual legislators don't seem to care much about that.
Posted by: RickD | January 5, 2007 11:59 AM
DuWayne | January 5, 2007 11:39 AM
The whole notion of opening it without a warrant is about time. Under existing law, they can open it and get a retroactive warrant. It has nothing to do with whether an individual piece of mail might help the investigation - under most circumstances, they will want to open all of the suspects mail.
I'm sorry, I guess I wasn't sufficiently clear. The issue I raised in my first paragraph was: how is the government supposed to determine that mail is to or from a suspect? It would be impossible just by looking at the envelope: the government would need to have evidence that either the sender or the intended recipient was suspected of something related to "the investigation" (whatever that "investigation" might be). And if the government had that evidence, it is highly likely that the government would be able to obtain a warrant based on that evidence. There is a fairly low threshold of "probable cause" necessary to obtain a warrant, but there would have to be some evidence of an association between "the investigation" and a violation of US law, and a further association between either the sender or the intended recipient and "the investigation." I find it difficult to believe how that can be determined just by looking at an envelope.
It appears that Bush wants the government to be able to open anyone's mail at any time, on any whim.
BTW, you mention retroactive warrants. The only retroactive warrants that I am aware of are those available through FISA, and that only applies--as far as I know--to electronic communications. Do you know otherwise?
Posted by: raj | January 5, 2007 11:59 AM
raj wrote:
That's a very interesting question. I assumed that it would apply to all intelligence gathering, but I could be wrong. I didn't take the time to look up the text when writing this post. If anyone knows for sure, I'd love to find out. Orin Kerr would almost certainly know, perhaps I should email him.
Posted by: Ed Brayton | January 5, 2007 12:06 PM
Lemon Currey said: I suggest for Bush immediate detention and extraordinary rendition to Afghanistan, delivering him to warlards for trial for war crimes.
Then when he's hanged, go read his mail.
Who gets to sneak in the cell-phone camera? And will we have to go through another Ford-like excess of gushing by main-stream media?
Posted by: J-Dog | January 5, 2007 12:13 PM
Raj -
I have always assumed that the FISA law covers anything that law enforcement would traditionaly need a warrant for. My understanding has been that the FISA court is merely a court that allows law enforcement to keep particular investigations and their fruit, classified. But I could very well be wrong - it happens every once in a while. . .
Posted by: DuWayne | January 5, 2007 12:18 PM
I'd suggest that "true conservatives" might want to get a new term for their beliefs, or use one of the already in vogue terms, and leave that one behind. It seems to me it's been terminally hijacked by the proto-fascists and it's not likely to come back.
Much like "socialist" now means "Soveit-style communist" to many people. (Although, I will admit, less so in Vermont or Milwaukee.)
It's getting hard to find the real conservatives; many of them seem perfectly happy with the fake ones until something goes terribly wrong for long enough.
It was obvious to me who this guy (President Bush) was going to be before he took office, the Florida thing and the "riot" made it pretty clear.
Anyhow, the Democrats are not being as fair as the media would liek them to be with the GOP after smoking them in the last elections. So it's probably even.
The Democrats will spend 100 hours passing legislation they couldn't even get debated when the GOP was in power (and then have it vetoed or signing statemented.) Bush will open your mail.
Equal.
Posted by: Lettuce | January 5, 2007 1:33 PM
I don't think that Bush will use the veto much, if at all. He'll just allow legislation that he doesn't like, i.e., any legislation that could do any good at all for anyone outside of his imperial clique, and then render it meaningless with one of his "I reserve the right to ignore this law because I had my fingers crossed when I signed it" statements.
Vetoes are inconvenient. They can be overridden, and even a failed override is much harder for the brown-nosing stenographers we regard as a "news media" these days to just ignore for the sake of currying favor with their slavemasters. A veto and override battle could attract public attention and stimulate people to think about what their government is trying to do, and that's the very last thing our ruling classes want to happen.
There's a fundamental contradiction between these "I don't have to carry out this law if I don't want to" signing statements and the obligation embodied in the oath of office to "see that the laws be faithfully carried out that anyone who went through grade school social studies classes can see. Unfortunately, there is noone at all in government who is sufficiently unconcerned about maintaining their Inside-the Beltway-Kool-Kidz-Klub membership card to find the stones to point it out, nor anyone in the corpo-media willing or able to say it.
Posted by: Ktesibios | January 5, 2007 3:35 PM
I don't know which is more frustrating: the steady erosion of our civil rights by politicians from all parts of the spectrum, or the boobs who focus on irrelevancies to such an extent that they numb people's sensitivities to the real threats to civil rights.
This is what the section of the law in question said:
In simple terms, the Postal Service is directed to create a class of letter that is immune from being opened by postal employees, unless authorized by a warrant. This is word-for-word identical to Title 39, section IV, chapter 36, section 3623, paragraph (d) as shown in Cornell Law School's online version of the United States Code. Why it was added to Chapter 4 section 404 escapes me.
This is what Bush's signing statement said:
Or in simpler terms: section 404(c) of the law does not override the well-established "exigent circumstances" exception to the Fourth Amendment rule against illegal search and seizure, any more than the existing 3623(d) did. Law-enforcement agents may still open mail without a warrant, even of this "secure" class, if they have reason to invoke the "exigent circumstances" exception.
Posted by: wolfwalker | January 5, 2007 4:41 PM
As a foreigner, could someone elaborate on the lifetime of these signing statements? Do they only apply to the Bush administration and expire automatically upon someone else taking power, or do they apply to the Republican administration and automatically expire when/if another party takes power. Or, as I suspect, do they need to be challenged in the Supreme Court before they are voided, but otherwise are there for ever?
Posted by: Andrew | January 5, 2007 7:05 PM
The one thing that confuses me is, that since the post office is no longer part of the exective branch, would they hand over mail without a warrant. I am thinking not.
Posted by: Tulle | January 5, 2007 7:25 PM
DuWayne | January 5, 2007 12:18 PM
I have always assumed that the FISA law covers anything that law enforcement would traditionaly need a warrant for. My understanding has been that the FISA court is merely a court that allows law enforcement to keep particular investigations and their fruit, classified.
That's not my understanding of either the FISA act or the FISA court. I'm not an expert on FISA or search warrants in general, but the FISA act pretty clearly relates only to electronic surveillance. The sections of interest are the definitions in 50 USC 1801 and the authorization to conduct electronic surveillance without a warrant in 50 USC 1802. The interesting thing about the latter is that, contrary to what has been reported, it appears that electronic surveillance can be conducted without a warrant for up to a year. The oft-reported 3-day period seems to come from what are referred to as "minimization procedures" defined in 1801, which require that the information that is acquired during the surveillance be discarded if it is older than 72 hours. This appears to create a sliding 72 hour window during which information can be retained within the one-year period during which surveillance can be conducted.
The FISA court's jurisdication is defined in 50 USC 1803 and seems to be limited to electronic surveillance. There may be other parts of the USC that expanded the FISA court's jurisdiction, but I'm not aware of any.
I'm sufficiently unfamiliar with how secret warrants might be obtained from other courts--if they can be--that I can't comment on the question implicit in your second sentence.
BTW, someone commented on the fact that the government can open "snail mail" without a warrant and without notifying the sender or intended recipient, and that is probably correct. The government can certainly open mail and packages entering and leaving the country for customs purposes, and that would also extend to other purposes as well.
Posted by: raj | January 6, 2007 10:45 AM
So, in light of the foregoing (alleged ability of the Regime to break into our mail w/o warrant), is this signing statement really much ado about nothing?
Posted by: SharonB | January 6, 2007 1:50 PM