Bush Claims Mail Can Be Opened Without Warrant 714
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."
So? (Score:5, Interesting)
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.
I believe (Score:3, Interesting)
I believe that's how it's currently done. I may be wrong.
Bush is saying they don't need probably cause-- they can just open it.
Re:OH NOES!!! (Score:5, Interesting)
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)
"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:Canada looks better and better (Score:4, Interesting)
Honestly, don't come to Canada if you believe that it is a more democratic or free country than the US
Essentially, whenever Canada has a majority (which is impossible without strong support from the eastern provinces) it is a benign dictatorship; being that everyone in the West doesn't count (lower representation in the Senate, Lower representation in the House of Commons) we are constantly abused in favour of eastern interests.
If you haven't noticed (Score:3, Interesting)
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, and Thomas would support the legality of these signing statements. Stevens, Souter, Ginsberg, and Breyer would not. Kennedy and Roberts? Don't know.
In short: at the present, most legal scholars believe the signing statements are not legally binding. But the right is working very hard to ensure that they will be.
Re:Obligatory quote (Score:5, Interesting)
US Postal System (Score:1, Interesting)
Re:OH NOES!!! (Score:4, Interesting)
Is that all you've got? Usually ad hominem attacks resort to foul language to drive their pointlessness home.
How about this: you explain why my expectation that the president either follow the law or veto it is wrong.
Re:OH NOES!!! (Score:3, Interesting)
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?
Nothing new... (Score:3, Interesting)
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.
Re:New Congress (Score:3, Interesting)
Re:Obligatory quote (Score:3, Interesting)
Here is what the Prez said, although I was not able to find an exact quote. This if from TFA:
He then issued a "signing statement" that declared his right to open mail under emergency conditions
I would assume emergency conditions to be something like:
I don't recall the Gov't seeking judicial review when an anthrax laced letter was sent to Tom Daschle or any of the letters that followed it that were leaking white powder. There are times when I feel the Gov't has authority to open mail. Granted, most of the time they don't, but there are those situations.
Re:Obligatory quote (Score:1, Interesting)
What do you mean? According to Michael Hayden, director of the CIA, formerly head of the NSA, said during a press conference that the fourth amendment does not mention probable cause. He should know--if there's anything he understands, it's the fourth amendment. He said so.
http://www.fair.org/index.php?page=2808 [fair.org]
Re:Signing statements are so meaningless (Score:3, Interesting)
Re:So sick of this crap (Score:3, Interesting)
Re:OH NOES!!! (Score:5, Interesting)
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.
Encrypt snail-mail? (Score:2, Interesting)
Re:OH NOES!!! (Score:3, Interesting)
Re:OH NOES!!! (Score:1, Interesting)
Liberals are in the business of providing band-aids for society's problems. If they ever actually fixed things, they'd be out of a job, and worse, they would have no rationalization for lording it over the rest of us as the providers of all things good.
See? I can be just as hard on liberals.
PowerLine Blog Disects the Article... (Score:3, Interesting)
http://powerlineblog.com/archives/016398.php [powerlineblog.com]
"...I think the paper has the story exactly backward. Under pre-existing law, a search warrant was normally required to open first class mail (but not other forms of mail). However, many exceptions to the requirement of a search warrant have been recognized. The Fourth Amendment does not require a warrant in all cases; it requires that all searches be "reasonable."
One broad category of exception to the requirement of a warrant is "exigent circumstances." Generally speaking, if there are exigent circumstances (e.g., a danger that evidence is about to be destroyed), a warrant is not required. Thus, to construe the act as permitting warrantless searches in cases of exigent circumstances such as the possible presence of hazardous materials, means that in this regard, the act did not make any change in pre-existing law.
Likewise with the President's second qualification. Under the Foreign Intelligence Surveillance Act, warrantless physical searches are authorized in some circumstances. Thus, the President's signing statement means that he does not construe the Postal Accountability and Enhancement Act as changing these provisions of FISA.
So what President Bush is saying is that he understands that law enforcement authorities have exactly the same power to open first class mail that the had prior to the enactment of the Postal Accountability and Enhancement Act, at least with respect to exigent circumstances and FISA-authorized searches."
Re:OH NOES!!! (Score:3, Interesting)
Re:OH NOES!!! (Score:1, Interesting)
There is nothing to stop a law enforcement officer from opening your mail, searching your car, or busting in your door without a warrant in the name of "probable cause." Then, if something incriminating is found, you're arrested and brought to trial. The evidence that was discovered on a warrantless search can be thrown out (permanently) if their probable cause isn't sufficient.
My biggest concern is that with Habeus Corpus effectively gone [msn.com], the validity of their "probable cause" may never get heard before a judge.
Other patriots said... (Score:3, Interesting)
"Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding."
Justice Louis D. Brandeis, US Supreme Court Justice 1928 Source:dissenting, Olmstead v. United States, 277 US 479 (1928)
"Men have discovered no technique for long preserving free government except that the executive be under the law."
Justice Robert H. Jackson Source:Sam Ervin, The Whole Truth
"The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence; as has been happily proved by the result of the great effort to throw off its just authority."
Justice David Davis (1815-1886) U.S. Supreme Court Justice 1862-1877 Source: Ex parte Milligan 71 U.S. 2 (1866) DAVIS, J., Opinion of the Court http://liberty-tree.ca/qb/David.Davis.Quote.5879 [liberty-tree.ca]
Find them. Read them. Absorb them.
Re:The Actual Signing Statement (Score:2, Interesting)
One says roughtly: "The president interprets that he can open mail in emergency circumstances in order to protect life and national security.
That would be both sane and legal. However:
The other says: "The president interprets that he can open mail in emergency circumstances, or when he considers it legally allowed for intelligence purposes.
Almost anything dealing with foriegn intelligence is classified to the point where Congress and the Supreme Court can not even review it, much less do anything about it. Even the Foreign Intelligence Subcommitee is limited in classification, if I remember correctly. They can only review intelligence that is provided willfully by the Executive.
"...to the maximum extent permissible..."
Re:OH NOES!!! (Score:5, Interesting)
Full disclosure: I'm pretty much somewhere to the left of most people. Im not a socialist, but I'm a greeny humanitarian athiest non-nationalist who really does think people are more important than profits (but conceeds its rarely as simple as that).
I've noticed something quite interesting watching across the pacific at the political debates in the US, and one thing is that whats often being called a "conservative" often doesnt seem to be that well conservative. Its pretty much the same here.
I'm going to do something really fucking wierd for me and argue for traditional conservatism for a bit.
I've always taken conservatism to be a grand old tradition starting with Edmund Burke basically stating in a round about way that tradition trumps human reason. Now whilst that can be accused of anti-intellectualism (and its a correct accusation on some level) its good to look at the context historically.
a-priori reason up till at least the modern times lead to two major strands of politico-economic thought. The workerist communism of Karl marx, and the free market liberalism of Adam Smith. Both brilliantly argued, but both historical failures (some would argue free market liberalism, the dominant ideology of the west has infact redeemed in the past 100 or less years. maybe) itself in its ability to deliver positive outcomes for people.. Consequently conservatism argues for small business, authoritarian but not necesarily too economically intrusive government, against welfare , for monarchy (although Burke was fond of the liberal republicanism of the US revolution despite its origins in the french revolution he despised, but for diferent reasons, principally that he saw them as patriotic and without much of a tradition anyway to squash) and conservatism was largely protectionist. He didnt like the idea of a free market that would squash village and farm economys. Although Karl marx's mob wasnt around yet at the time of Burke, he would of passionately hated it, for its complete untraditionalism and anti-monarchism. Burke also strongly suggested traditional social mores always trumped 'experimental' philisophical social moralitys. If your social system came from a philosopher rather than a pulpit or king, chances are Burke hated it.
Now you can see some of that in the republican rhetoric, but not all of it, and the US is somewhat of a special case, in that the founding fathers republicanism was also profoundly classically liberal. The support base of the republicans tends to come from agricultural communitys, its supporters, and southern 'patriotic' sorts of sentimentalism. Basically a conservative electorate.
But heres the rub. Whilst the republicans (despite the rhetoric about small govt, a liberal idea) do tend to do local policy in a vaguely conservative manner, the foreign policy is deeply non conservative.
Burke always valued tradition. And that means that stomping traditional muslim countries and replacing govts with liberal democracys is a bad thing for conservatives, because conservatism understands that the local tradition is what 'evolved' under the 'best of all possible worlds' within that community. Many traditional conservatives have noted this, and pointed out that neo-conservatism (as many of these neuvo conservatives have dubbed themselves. When said 'conservatives espouse free market ideas, they will tend to be refered in academia as 'neo liberals') appears to have verry little respect for local tradition and thus isnt conservatism)
So yeah. What Im arguing is that at least on foreign policy , and on some level foreign trade, the conservatives of the US establishment appear to be anything but, and paradoxically the liberals appear to be more conservative.
Its an odd conundrum.