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Bush Claims Mail Can Be Opened Without Warrant 714

Posted by kdawson
from the gentlemen-don't-do-that dept.
don_combatant writes to note that President Bush claimed new powers to search US mail without a warrant. He made this claim in a "signing statement" at the time he signed a postal overhaul bill into law on December 20. The signing statement directly contradicts part of the bill he signed, which explicitly reinforces protections of first-class mail from searches without a court's approval. According to the article, "A top Senate Intelligence Committee aide promised a review of Bush's move."
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Bush Claims Mail Can Be Opened Without Warrant

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  • OH NOES!!! (Score:4, Insightful)

    by fishybell (516991) <{fishybell} {at} {hotmail.com}> on Thursday January 04, 2007 @12:56PM (#17459748) Homepage Journal
    Oh wait, good thing signing statements aren't generally regarded as law, but rather his view of the law.
    • Re:OH NOES!!! (Score:5, Interesting)

      by l2718 (514756) on Thursday January 04, 2007 @01:07PM (#17459998)

      In theory, you are quite right, since the president has not been in charge of interpreting the laws for a long time. In practice, however, very few acts of the "FedGov" are ever challenged in court – a large portion of your constitutional protections arise from what the government decides not to do, rather than from you retroactively getting a court order enforcing your rights. In particular, if the government decides to ignore a particular right, they can effectively nullify it.

      Actually, to the extent that Mr. Bush is saying "if we believe there's a ticking bomb in a letter we will send the bomb squad in first and resolve the legal issues later", there is no controversey. Unfortunately, he also seems to be saying "if we believe the sender and reciever are contemplating un-american behaviour during a time of national emergency, we will read their mail first and put them on the no-fly list later".

      • Re:OH NOES!!! (Score:5, Interesting)

        by MECC (8478) on Thursday January 04, 2007 @01:14PM (#17460184)
        Actually, he's saying "I want to be dictator of the USA"

        "If this were a dictatorship, it'd be a heck of a lot easier, just so long as I'm the dictator."

        George w Bush, Washington, D.C., Dec. 19, 2000

        • Re:OH NOES!!! (Score:5, Informative)

          by spoonist (32012) on Thursday January 04, 2007 @01:26PM (#17460402) Journal
          Here [youtube.com] is the video of Shrub saying "If this were a dictatorship, it'd be a heck of a lot easier, just so long as I'm the dictator."
        • by HTH NE1 (675604) on Thursday January 04, 2007 @01:30PM (#17460508)
          "If this were a dictatorship, it'd be a heckuva lot easier, just so long as I'm the dictator."

          George W. Bush, Washington, D.C., Dec. 19, 2000

          I've changed it for you to reflect his usage of the language. (It's scarier that way.)
      • Re:OH NOES!!! (Score:5, Informative)

        by Chris Burke (6130) on Thursday January 04, 2007 @01:57PM (#17461122) Homepage
        Actually, to the extent that Mr. Bush is saying "if we believe there's a ticking bomb in a letter we will send the bomb squad in first and resolve the legal issues later", there is no controversey.

        Well, yes, because if you have reason to believe there's a bomb in a letter that might blow up if you take the time to go to court that's Probable Cause for doing a search, and a search warrant can be retroactively granted by a judge based on their initial evidence. This is all fine and rational and even Constitutional.

        The problem with Bush's wiretapping program is that he never got warrants, and never had probable cause to get a search. His agents never went to the FISA court that was specifically designed for these cases and rarely ever rejects a warrant request. Because, like I said, warrants can be granted retroactively there is no argument based on urgency against getting a warrant, and it is important to be aware of this when defenders of this policy bring up emergency situations. The only reason not to get a warrant from FISA is because there was no Probable Cause basis for the search, FISA would therefore not have granted a warrant, and the search was unreasonable and hence un-Constitutional.

        So regarding this current signing statement, the question is, what situation does it fall under? The specific wording is not contained in the article. If all he is saying is "under emergency cases of Probably Cause I authorize the search and will worry about warrants later", that's okay. If he is saying "I authorize searches whenever I feel it is necessary for National Security and will not worry about warrants at all", then this is the same as the wiretapping. The President's idea of what constitutes a necessity for National Security is clearly not limited to cases involving Probable Cause, and hence his authorization would not be limited to searches which are Constitutional.

        • Re:OH NOES!!! (Score:5, Interesting)

          by snowgirl (978879) on Thursday January 04, 2007 @02:46PM (#17462022) Journal
          Well, yes, because if you have reason to believe there's a bomb in a letter that might blow up if you take the time to go to court that's Probable Cause for doing a search, and a search warrant can be retroactively granted by a judge based on their initial evidence. This is all fine and rational and even Constitutional.

          Actually, the legal idea that permits investigating a possble bomb in the mail is Exigent Circumstance [wikipedia.org] not simply probable cause. In the case of Exigent Circumstances they *may* make a warrantless search, but the thing is that there has to be strong evidence that an emergency situation exists, where waiting to get a warrant will result in either destruction of evidence, escape of the suspect, or the key part: to prevent imminent danger to life or serious damage to property.

          If they had probable cause to search the mail, then they should get a warrant to open it. The only time where a warrant isn't necessary is for the reasons given above.

          Of course, we used to have a right to privacy of your person, which covered things like a diary. According to what I heard, this right was never written down, because the consitituonal framers considered it to be such an undeniable right, that it's not necessary to write it down. (After all, you're not required to testify against yourself, why should the government be able to use your diary against you then?) Although, no such right exists anymore, and your diary may be used against you, because it was never written down.
          • Re:OH NOES!!! (Score:5, Insightful)

            by Chris Burke (6130) on Thursday January 04, 2007 @03:02PM (#17462344) Homepage
            Actually, the legal idea that permits investigating a possble bomb in the mail is Exigent Circumstance not simply probable cause

            Ah, thanks for the correction. I was using Probable Cause to mean Exigent Circumstance, when Probable Cause is only what you need to get a warrant, not bypass it.

            Of course, we used to have a right to privacy of your person, which covered things like a diary. According to what I heard, this right was never written down, because the consitituonal framers considered it to be such an undeniable right, that it's not necessary to write it down. (After all, you're not required to testify against yourself, why should the government be able to use your diary against you then?) Although, no such right exists anymore, and your diary may be used against you, because it was never written down.

            I've always thought that the 4th Ammendment was pretty clearly granting a right to privacy. If I turn "right to be secure against unreasonable searches" into a positive statement I get "right to privacy". That's what privacy is -- the right to not have people search through your business without justification. Also, it specifically states "right to be secure in their persons... and effects against unreasonable searches" which sounds to me like privacy of your person and any diary you might be carrying.

            If that's not the case in practice, well, surprise surprise another of our Constitutional rights is trampled with hardly a murmor from the people. To me, that is exactly why cases like this are important. It's already bad enough how our Constitutional rights are ignored and denied us -- when the powers that be openly state that they do not intend to follow the Constitution, then the level of abuse is only going to be throttled up.
        • Re: (Score:3, Informative)

          by thule (9041)
          The problem with Bush's wiretapping program is that he never got warrants, and never had probable cause to get a search. His agents never went to the FISA court that was specifically designed for these cases and rarely ever rejects a warrant request. Because, like I said, warrants can be granted retroactively there is no argument based on urgency against getting a warrant, and it is important to be aware of this when defenders of this policy bring up emergency situations. The only reason not to get a warran
        • Re: (Score:3, Interesting)

          by sdjl (1046982)
          I used to work at the Information Warfare center in NORAD in Colorado Springs. If you're doing something the government is interested in, they probably already know about it anyway.
      • Re: (Score:3, Insightful)

        by DrVomact (726065)

        In theory, you are quite right, since the president has not been in charge of interpreting the laws for a long time. In practice, however, very few acts of the "FedGov" are ever challenged in court - a large portion of your constitutional protections arise from what the government decides not to do, rather than from you retroactively getting a court order enforcing your rights. In particular, if the government decides to ignore a particular right, they can effectively nullify it.

        All of the law is mere "th

    • Re:OH NOES!!! (Score:5, Insightful)

      by Qzukk (229616) on Thursday January 04, 2007 @01:11PM (#17460120) Journal
      He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

      "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

      Now that he is directly countermanding the bills he passes, can we not finally admit that Bush has broken his oath as President?

      but rather his view of the law.

      Or are you claiming is that despite "his view of the law" he's not going to order anyone to open mail?
    • by reporter (666905) on Thursday January 04, 2007 @01:28PM (#17460464) Homepage
      In 2004, Gerald Ford gave an interview to Bob Woodward of the "Washington Post". In the interview [freep.com], "Ford questioned President George W. Bush's rationale for going to war in Iraq and said he never would have instituted the administration's domestic surveillance program."

      Where is Gerald Ford when our nation needs him to rescue us from a cowboy?

    • Re: (Score:3, Interesting)

      by msobkow (48369)

      I thought Congress had to prepare the legislation and the only right Bush had was to veto their proposals.

      Did the American people ratify a new Constitution? Has the old one been burned?

    • by Anonymous Coward on Thursday January 04, 2007 @01:43PM (#17460814)

      Call Your Senator [huffingtonpost.com] now and demand the arrest,
      trial, conviction, and sentencing of AL-QAEDA's CHIEF OF [whitehouse.org]
      OPERATIONS.

      Thanks again for your support,
      Kilgore Trout, ACTIVIST
    • by ubuwalker31 (1009137) on Thursday January 04, 2007 @03:51PM (#17463308)
      http://www.whitehouse.gov/news/releases/2006/12/20 061220-6.html

      "The executive branch shall construe subsection 404(c) of title 39, as enacted by subsection 1010(e) of the Act, which provides for opening of an item of a class of mail otherwise sealed against inspection, in a manner consistent, to the maximum extent permissible, with the need to conduct searches in exigent circumstances, such as to protect human life and safety against hazardous materials, and the need for physical searches specifically authorized by law for foreign intelligence collection."
  • Obligatory quote (Score:5, Informative)

    by l2718 (514756) on Thursday January 04, 2007 @12:57PM (#17459768)
    The right of the people to be secure in their ... papers ... against unreasonable searches and seizures, shall not be violated ...
  • by BWJones (18351) * on Thursday January 04, 2007 @12:57PM (#17459784) Homepage Journal
    Bush keeps saying he wants everyone to work in a bipartisan fashion, but I don't think "bipartisan" means what he thinks it does. Rather bipartisan appears to mean to him "do it my way" or "because I say so" and "I'm the decider".

    Seriously though, and back on topic: Even the American Bar Association has described the use of signing statements to modify the meaning of duly enacted laws as "contrary to the rule of law and our Constitutional system of separation of powers". When is the American public going to wake up on both sides of the isle here? From a Republican standpoint, this administration has gone so far off from Republican ideals, that it is not even funny. Republicans used to be the ones who were for a strong military, smaller government, less government intrusion into our lives and lower taxes and what we have is a military that is weaker and smaller now than it has been in decades, we have the largest federal bureaucracy in the history of the world, fewer Constitutional rights and lower taxes are only for large corporations. From the Democratic side, well..... those guys just got hosed for the last few years and they do not appear smart enough to position anyone capable enough to compete with someone even as unappealing and dangerous to our lives as Bush and Co.

    I worry for our future as we have signed away many of our Constitutional rights and protections, we have alienated many foreign countries and allies after squandering perhaps the most support we've ever had in history after 9/11, we are entrenched in a combat zone that has very little positive outcome potential, we are signing away our financial future through one of the largest deficits in history and Cheney is on record as saying deficit spending does not matter.

    • by jfengel (409917) on Thursday January 04, 2007 @01:28PM (#17460468) Homepage Journal
      Deficit spending isn't as obviously evil as you might think. As long as you're borrowing money cheaply and putting it into something that appreciates more quickly, it's actually in your interest to borrow as much money as possible.

      A mortgage is considered an excellent investment, and it's deficit spending. In fact, many financial advisors will tell you to buy the biggest house you can afford, and pay it off slowly. That's because real estate is a good investment in general, what with the population continually rising. (Confusing matters a bit is that the tax breaks on mortgage interest make it an even better deal, though that's artificial.)

      Similarly, a wise company will always have a debt: it borrows money to invest in itself and make new stuff to be even more profitable.

      Mind you, all of this assumes you're investing in something valuable. Money borrowed and then wasted is the real evil. Blame the waste, not the borrowing. Cutting the borrowing is one way to limit waste, but Congress is particularly adept at finding ways to waste money. A favorite is to put the pork on the budget, deliberately under-funding something critical. Then when that runs out of money, they pass an "emergency appropriation", which doesn't count on the budget. (It shows up in the debt, though.)

      Eliminating earmarks will help, but at $24 billion they're a drop in the bucket of a multi-trillion dollar budget. The real waste is in things like farm subsidies to agribusinesses and weapons programs the Pentagon doesn't want. Try cutting those, though, and watch people scream. Everybody wants the budget cut, except for the bits that come in to their state. Those are necessary.
    • Re: (Score:3, Insightful)

      by happyemoticon (543015)
      Onion article: http://www.theonion.com/content/node/51140 [theonion.com] "Bush Grants Self Permission To Grant More Power To Self"
  • So? (Score:5, Interesting)

    by duerra (684053) * on Thursday January 04, 2007 @12:58PM (#17459796) Homepage
    AFAIK, the last I checked the legality or effectiveness of signing statements (of which Bush has made hundreds of by now, pretty much attaching one to nearly every bill he has signed since he has been in office) was extremely dubious at best. The second something that tries to play off one of these signing statements goes to court, does anybody really, honestly believe that they would hold any legal water? The bill is the bill, and regardless of what little post-it note that the president attaches to it when he signs it doesn't change that fact.

    Honestly, I'm not too worried about it at this point, but I'm sure others will follow up if I am completely off base, as IANAL.
    • Re:So? (Score:5, Informative)

      by Mateo_LeFou (859634) on Thursday January 04, 2007 @01:09PM (#17460062) Homepage
      Sen. Arlen Specter (R-Pa.) introduced the Presidential Signing Statements Act of 2006 on July 26, 2006. [2]The bill would:

            1. Instruct all state and federal courts to ignore presidential signing statements. ("No State or Federal court shall rely on or defer to a presidential signing statement as a source of authority.")
            2. Instruct the Supreme Court to allow the U.S. Senate or U.S. House of Representatives to file suit in order to determine the constitutionality of signing statements. [3]

      http://en.wikipedia.org/wiki/Signing_statement#Con troversy_over_George_W._Bush.27s_use_of_signing_st atements [wikipedia.org]
    • Re: (Score:3, Insightful)

      The problem is that long before any court sets things straight all of the people who are harmed by actions taken based on a signing statement will have had their lives more or less destroyed. Read My Country Against Me, which is Wen Ho Lee's recounting of all of the nefarious carryings on surrounding his trial for being a spy for China. The guy was ruined, and when a court finally got around to apologizing the world had moved on, that part of the story didn't get the same front page coverage as his arrest.
    • by admiralh (21771)
      The right has been stacking the courts for the last 26 years (excluding a brief respite during the Clinton admin, but in that case, they simply refused to act on over 60 of Clinton's nominations).

      Remember the "Unitary Executive" fights during the Roberts and Alito nomination hearings? Bush is saying with these signing statements that he is only subject to the laws he wants to be, and can run the country how he sees fit (the MBA at work here). This is the "Unitary Executive". I believe that Alito, Scalia, an
      • Unitary Executive is a legal theory that holds that there are 3 branches of government, executive, legislative, and the courts. It doesn't question Chief Justice Marshall's assertion that the court is a co-equal branch (clearly NOT in the constitution, it was a much smaller branch, with executive and legislative being relatively equal), it doesn't even question the Warren Court's assertion that it is the most important branch (a bizarre assertion, but suggesting the the court can decide to throw out someth
    • Re: (Score:3, Insightful)

      by twifosp (532320)

      AFAIK, the last I checked the legality or effectiveness of signing statements (of which Bush has made hundreds of by now, pretty much attaching one to nearly every bill he has signed since he has been in office) was extremely dubious at best.

      It's not so much legality as it is accountability. Try this scenario on for size: The FBI, CIA, or NSA (or some sect of one) begin opening up tons of United States Citizen mail without warrants. The reason doesn't matter at all, but just imagine they started openin

  • by Junior J. Junior III (192702) on Thursday January 04, 2007 @12:58PM (#17459814) Homepage
    I'm not so surprised that Bush is claiming he can read mail without a warrant as I am that he can read at all.
  • Turns out (Score:5, Funny)

    by antifoidulus (807088) on Thursday January 04, 2007 @01:03PM (#17459902) Homepage Journal
    Bush just wants to maximize his chances of winning Ed McMahon's $10 million.
  • by Malakusen (961638) on Thursday January 04, 2007 @01:04PM (#17459918) Journal
    Bush keeps pulling BS powers out of his ass based solely on letting him do whatever he wants to do at any given time.

    "Hmm... I want to eavesdrop on phone calls, but as the law is written now, I can't. Fortunately, I can use my Presidential Wiretapping Power to authorize warrantless wiretapping!"
    "Hmm... I want to torture prisoners to get information that, while not accurate, will support my foreign policy goals. But it's against US and international law. Aha! Super Secret Presidential Rendition Powers!"

    And so on. Somebody really needs to tell Bush he can't go to Superdickery.com anymore.
    • Re: (Score:3, Insightful)

      by ubergenius (918325)
      Everyone keeps talking about Bush like he is some evil, snickering sociopath, sitting in his dark cave-like office, cackling at his new diabolical plan to become ruler of the world. However, I see it very differently: Has anyone even considered that he is probably just genuinely terrified of the perceived terrorist threats, and that is why he is acting in a panicky, reactive manner and making stupid, irresponsible policies and decisions? I find that much more likely.

      I personally very much disagree with a
  • by HiredMan (5546) on Thursday January 04, 2007 @01:05PM (#17459956) Journal

    Seriously, who can argue that as the person in charge of enforcing the rule of law and "protecting the constitution" that George W. Bush is doing the exact opposite. He's not just not doing it he's actively working to undermine the entire idea of separation of powers and role of the executive branch.

    Impeach.

    Now.

    =tkk

    PS See you at GITMO!
  • by 8127972 (73495) on Thursday January 04, 2007 @01:08PM (#17460036)
    "Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety."

    From - An Historical Review of the Constitution and Government of Pennsylvania
    Benjamin Franklin
  • by Toby The Economist (811138) on Thursday January 04, 2007 @01:09PM (#17460064)
    The State is increasing its powers to monitor citizens - both where they are, and the conversations they have.

    This is also the State which is increasingly introducing extra-judicial handling of terrorists - holding them indefinitely without trial, interrogation methods which are tantamount to torture, no access to lawyers, no publication of their status.

    This is also the State which has been gradually extending extra-judicial methods (warrantless monitoring, for example) to citizens.

    It is my view a State which fails to understand the importance of civil and human rights, for example in this case in its increasing intrusion in private lives, will, *as you would expect*, fail to apply those rights in other areas - in this case, justice for those accused of crimes and they way they are treated.
  • I encourage everyone, no matter what your political leanings are, that is sick and tired of this president's blatant misuse of executive power, to consider sending a "Memorial of Impeachment" to incoming Speaker Pelosi on January the 15th of this year. You can read more about this, and print out the Memorial (pdf file) at ImpeachForPeace.org [impeachforpeace.org]. I've already printed mine out, signed it, and got it notarized. It's sitting on my computer desk, waiting for the 15th. I urge everyone to do the same. It may be the proverbial straw that breaks the camel's back, and we may be the ones that are able to initiate the impeachment procedure.
    • Re: (Score:3, Funny)

      by avatar4d (192234)
      YES! Finally Cheney is in charge! Now we can shoot the terrorists in the face...
    • Re: (Score:3, Funny)

      by advocate_one (662832)

      Hold on to the other copy of the letter until Jan. 15th, after the new congress, when we're having everyone send them in. (next wave will go to a different, more impeachment friendly, congress person in March. Stay tuned.)

      That's right -- to make a big impact, we're having everyone send it in on the same date (Over 350,000 downloads so far representing over 1.2 million mailings). We hope to flood the congress with sacks of mail and cause a newsworthy event to further pressure them to act on the memorials.

  • State of emergency (Score:5, Insightful)

    by Black Parrot (19622) on Thursday January 04, 2007 @01:18PM (#17460278)
    A "state of" emergency has ever been the excuse for taking away people's liberties. GWB thinks 9/11 gives him the right to do whatever he pleases, constitution be damned.
  • by markbt73 (1032962) on Thursday January 04, 2007 @01:32PM (#17460560)
    You can read our mail... if we can read yours.

    Deal?
  • Nothing new... (Score:3, Interesting)

    by Daemonstar (84116) on Thursday January 04, 2007 @01:43PM (#17460818)
    From the statement [whitehouse.gov] (emphasis mine):
    The executive branch shall construe subsection 404(c) of title 39, as enacted by subsection 1010(e) of the Act, which provides for opening of an item of a class of mail otherwise sealed against inspection, in a manner consistent, to the maximum extent permissible, with the need to conduct searches in exigent circumstances, such as to protect human life and safety against hazardous materials, and the need for physical searches specifically authorized by law for foreign intelligence collection.
    From the posted article:
    "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.

    "You have to be concerned," a senior U.S. official agreed. "It takes executive-branch authority beyond anything we've ever known."
    In his signing statement, he refers to "exigent circumstances" and "specifically authorized by law", referring to foreign intelligence in the latter comment. This is something new? No where does it say that the government will be going through peoples' mail, like the tone of the article suggests. Many entities have "exigent circumstance" exceptions. You don't think that if local EMS, fire, or police are bound by a rule, that, if an emergency happens, they don't have authority to exceed that rule? There are many examples in law for this specific purpose (reference Penal Code, Family Code, Code of Criminal Procedure, etc.).

    If someone claims to have mailed a nasty toxic substance, or if there is probable cause to believe that something like that has occurred, then law enforcement/EMS better be there to take care of it. The post office doesn't have the resources to handle such tasks; let those who have experience with emergency situations handle it.

    I agree that such a claim can be the potential for abuse, but that comes with just about everything.
  • Recurring meme? (Score:5, Insightful)

    by UnknowingFool (672806) on Thursday January 04, 2007 @01:43PM (#17460820)
    Celebrities should not comment on science [slashdot.org]
    Bill Gates comments on robotics [slashdot.org]
    and now:
    George Bush comments on constitutional law
    The scary part is that one of these is really dangerous.
  • by Rinisari (521266) on Thursday January 04, 2007 @01:45PM (#17460860) Homepage Journal
    Thoughts:
    1. Yet another reason to use encrypted email
    2. Yet another reason to impeach him [indymedia.org]
    3. Yet another reason to abolish presidential signing statements [sourcewatch.org]
    4. Yet another reason to 'not trust the government'
    The constant barrage of unconstitutionality baffles me. This man just keeps adding and adding to the reasons why he's [commondreams.org] the [rollingstone.com] worst [littleindia.com] president [hnn.us] ever [washingtonpost.com].
  • by Guppy06 (410832) on Thursday January 04, 2007 @02:44PM (#17461996)
    ... look forward to the pending constitutional crisis triggered when a Postal Inspector places an FBI agent under arrest.
  • by Petersko (564140) on Thursday January 04, 2007 @04:00PM (#17463470)
    Does the guy have to lie about a blowjob to get impeached?

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