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Has the Bush Administration Claimed New Power to Open Mail?:
In the last few days, there has been a lot of press on the Bush Administration's claims that the government can open postal mail without a warrant in some cases. Last Friday's story in the Washington Post is typical:
  President Bush signed a little-noticed statement last month asserting the authority to open U.S. mail without judicial warrants in emergencies or foreign intelligence cases, prompting warnings yesterday from Democrats and privacy advocates that the administration is attempting to circumvent legal restrictions on its powers.
  A "signing statement" attached to a postal reform bill on Dec. 20 says the Bush administration "shall construe" a section of that law to allow the opening of sealed mail to protect life, guard against hazardous materials or conduct "physical searches specifically authorized by law for foreign intelligence collection."
  White House and U.S. Postal Service officials said the statement was not intended to expand the powers of the executive branch but merely to clarify existing ones for extreme cases.
  "This is not a change in law, this is not new, it is not . . . a sweeping new power by the president," spokesman Tony Snow told reporters. "It is, in fact, merely a statement of present law and present authorities granted to the president of the United States."
  But some civil liberties and national-security law experts said the statement's language is unduly vague and appears to go beyond long-recognized limits on the ability of the government to open letters and other U.S. mail without approval from a judge.
  Kate Martin, director of the Center for National Security Studies in Washington, said the government has long been able to legally open mail believed to contain a bomb or other imminent threat. But authorities are generally required to seek a warrant from a criminal or special intelligence court in other cases, Martin and other experts said.
  "The administration is playing games about warrants," Martin said. "If they are not claiming new powers, then why did they need to issue a signing statement?"
  Administration critics said they were particularly confused because the relevant portion of the postal reform legislation — which prohibits opening mail without warrants in most circumstances — remains unchanged.
  So there are two accounts of what is happening. In the first account, the Bush Administration is unilaterally asserting new powers to open mail; in the second, the Administration is simply restating long-settled law. But which account is correct? My own answer is that I'm not sure yet. There may be nothing here, but there's a possibility that there is something important.

  Here's what I could figure out. The Postal Accountability and Enhancement Act was passed in late December, and mostly regulates the internal operations of the U.S. Postal Service. It's really dry stuff about employment law, perhaps interesting if you work at the Postal Service (or you're an employment lawyer) but not otherwise.

  The relevant section of the Act is Section 1010(e), which comes at the very end of the act in a section about "technical and conforming amendments." This section doesn't do much: it simply moves a paragraph of statutory text from one place in the U.S. Code to another. Specifically, the section takes a paragraph from 39 U.S.C. 3623(d) — a paragraph that has been there since the 1970s — and moves it to 39 U.S.C. 404(c). Here is the paragraph that has been moved from one section to another:
The Postal Service shall maintain one or more classes of mail for the transmission of letters sealed against inspection. The rate for each such class shall be uniform throughout the United States, its territories, and possessions. One such class shall provide for the most expeditious handling and transportation afforded mail matter by the Postal Service. No letter of such a class of domestic origin shall be opened except under authority of a search warrant authorized by law, or by an officer or employee of the Postal Service for the sole purpose of determining an address at which the letter can be delivered, or pursuant to the authorization of the addressee.
  Okay, so that brings us to the President's signing statement. The signing statement for this Act has the following to say about the technical amendment in Section 1010(e):
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.
  So what does this signing statement mean? First, it pretty clearly says that the Administration reads the moved paragraph as having implicit exceptions that track the Fourth Amendment's exceptions to the warrant requirement. The Fourth Amendment has long required a search warrant to open postal mail, subject to the usual Fourth Amendment exceptions such as exigent circumstances. The signing statement appears to say that the Administration construes that law as implicitly incorporating the Fourth Amendment's warrant exceptions. In other words, the law isn't intended to require federal officials to obtain a warrant when exigent circumstances or other exceptions exist.

  The second possible meaning of the signing statement is that the Executive may construe other statutory laws as authorizing warrantless searches, and that in those cases the other laws trump. "Physical searches specifically authorized by law for foreign intelligence collection" could refer to searches authorized under the emergency exception to FISA's rules requiring a warrant for physical searches, or might possibly — and here is where it gets interesting — refer to the AUMF.

  Is this something new? Is this construction of the statute the same construction the executive has always taken, or does it reflect a change in policy? In other words, does the issuance of the signing statement for this technical amendment simply signal the Bush Administration's unusual overreliance on signing statements — so much that they would make a statement to restate existing law even when the paragraph is just moved from one place to another — or does it hint at a previously unknown Administration's practice?

  I don't know. My guess is that the signing statement doesn't signal a major reinterpretation of the statute as against Fourth Amendment exceptions. Here, my thoughts are very tentative: I spent about a half hour looking for cases that would answer whether the postal statute block searches in exigent circumstances or when another exception to the warrant requirement applies, and came up mostly empty. Somewhat to my surprise, I could only find a handful of suggestions and snippets on this, none of which was certain. (The reason for the lack of cases may be that exigent circumstances may require the seizure of mail, but won't often require its search. I'm not sure.) On the whole, though, this led me to think that the statute has in the past been understood to be more about internal postal service procedures rather than investigations, so it would make sense for the statute to not trump the usual Fourth Amendment doctrines allowing warrantless exigent circumstances searches.

  But what if the signing statement isn't really about recognizing constitutional exceptions, but rather the Bush Administration's reading of the AUMF? Recall our many discussions about the legality of the NSA domestic surveillance program. FISA's prohibition on physical searches for national security reasons has the same prohibition as FISA's prohibition on wiretapping: it also prohibits searches "except as authorized by statute." 50 U.S.C. 1827(a)(1).

  DOJ's defense of the NSA surveillance program argues that the AUMF is clear statutory authorization to use fundamental tools of war to fight terrorism, and that "[e]lectronic surveillance is a fundamental tool of war that must be included in any natural reading of the AUMF's authorization to use 'all necessary and appropriate force.'" Thus, in the Administration's view, the AUMF is statutory authorization to conduct electronic surveillance. If electronic surveillance is a fundamental tool of war, then presumably postal surveillance is a fundamental tool of war, as well. I can't think of a reason why you would think the AUMF allows national security wiretapping but not national security letter-opening. If you can intercept John's e-mail to Jane for national security reasons, presumably you can intercept John's snail mail to Jane, too.

  So where does that bring us? Not to any certainty, unfortunately. It may be that this signing statement is nothing, and it just reveals the Administration's willingness to issue signing statements about everything. On the other hand, it may be that it hints at a program allowing the government to open postal mail under the claimed authority of the AUMF.
FantasiaWHT:

The Postal Service shall maintain one or more classes of mail for the transmission of letters sealed against inspection.


Is this a new class of mail? It was always my (possibly mistaken) understanding that some letters/packages were inspected randomly- among other reasons for checking contents against what was claimed (especially for media mail, which is where I ran into some problems)
1.8.2007 1:44pm
Just Dropping By (mail):
Isn't the key point here that the signing statement is reversing the burden? If you parse out the statement carefully, you'll see that the default assumption now is that the Feds can read the mail (note the "maximum extent permissible" language). In other words, the statute is now viewed as impinging on the right of the Feds to read the mail, rather than that exigent circumstances/FISA are an exception to the rule that the Feds can't read the mail wihout a warrant.
1.8.2007 1:47pm
JosephSlater (mail):
Orin gives us, not surprisingly, a detailed and thoughtful analysis of this issue.

My only complaint is that, as a scholar of public sector labor relations, I think EVERYONE should be interested in hearing that the other parts of the law were about employment relations. Can't wait to read those sections, myself ...
1.8.2007 1:54pm
LizardBreath (mail):
What makes me think that this is a claim of expanded authority to open mail is that I don't see an obvious applicability of exigent circumstances to mail. I'm not a Fourth Amendment maven, but my understanding of 'exigent circumstances' is that it generally applies to things with the capacity to move away under their own power, like cars or people. Mail is inanimate, and not going anywhere unless a Postal Service employee moves it, and warrants don't take that long to get -- hours, rather than days.

I can't come up with a story where a law enforcement official would be aware of a particular piece of mail, with information sufficient to justify a warranted search, where it would be impractical to get the warrant before the mail left the scene. What would the exigent circumstance be?
1.8.2007 1:58pm
r78:
Here we have a pre-eminent 4th Amendment scholar who cannot tell, exactly, what the president's signing statement means.

The "nation of laws" concept is eviscerated if we cannot even tell what the law is in the first place.
1.8.2007 2:05pm
SailorDave (www):
LizardBreath, I think hearing a ticking sound would be an exigent circumstance. Or having a geiger counter or anthrax alarm go off.
1.8.2007 2:08pm
josh:
Professor

I can;t find the link, but can you consider and respond to Powerline's take on this issue?
1.8.2007 2:08pm
Anderson (mail) (www):
It may be that this signing statement is nothing, and it just reveals the Administration's willingness to issue signing statements about everything. On the other hand, it may be that it hints at a program allowing the government to open postal mail under the claimed authority of the AUMF.

Or some combination of the two. Is there any reason to believe, based on the claims we've seen based on the AUMF, that this White House would *not* think it could open mail under the AUMF?

LB: the words "ticking bomb" will doubtless be invoked.
1.8.2007 2:10pm
OrinKerr:
Josh,

I couldn't find the link, either. Has Powerline posted on this?
1.8.2007 2:12pm
josh:
Here it is:

http://powerlineblog.com/archives/016398.php
1.8.2007 2:13pm
JRL:
They just want to see if people are mentioning what library books they're checking out. Or it could be to target those that are no longer checking out books at the library to escape the tentacles of the Patriot Act, but are instead now buying their books on Amazon. Now the government can get at those books too. UPS and FedEx are next. You're going to have to go black market to get that next book in the Mitford series, lest W know you're a pansy.
1.8.2007 2:13pm
OrinKerr:
Thanks, Josh. As best I can tell, the Powerline post adopts the first possibility as likely; however, it unfortunately doesn't discuss the second possibility. I would be interested in knowing what John Hinderaker (or someone else at Powerline) thinks of the AUMF argument.
1.8.2007 2:18pm
Anderson (mail) (www):
You're going to have to go black market to get that next book in the Mitford series, lest W know you're a pansy.

Shoot, W. is a *big* Mitford fan. He even reads them, whereas Rove just assigns them to aides who have to write him one-page summaries.
1.8.2007 2:19pm
josh:
Seriously, professor, I've never hidden my ideological stripe in these comments, but I enjoy this blog, and yours and prof volokh's posts, in particular because of the intellectual honesty.

I rarely expect the guys at Powerline to discuss any "possibility" other than the one that supports the Bush admin/conservative ideology.

But I promise to keep an open mind.
1.8.2007 2:25pm
PatHMV (mail) (www):
r78... the presidential signing statement is not law, it has no force of law. It merely directs the executive branch as to how it should interpret the law. The courts will decide what the law is. If the USPS opens your mail, it will not be doing so pursuant to any authority granted under the signing statement, but only pursuant to the authority of the underlying legislation or recognized exigent circumstances under typical 4th Amendment jurisprudence. The presidential signing statement has no impact on your ability to discern what the law is.
1.8.2007 2:29pm
Steve:
I feel smarter when Prof. Kerr and I analyze a legal issue in the same way. I also believe the AUMF possibility is the significant issue here. The problem with Bush's signing statements isn't that he issues them; it's that they're drafted in such vague legalese that they leave you with no idea of what power he is actually claiming. There's no reason a signing statement can't plainly tell the reader what exception the President is carving out and why.

On the topic of the AUMF, it's noteworthy that when Sen. Leahy asked AG Gonzales during last year's warrantless wiretapping hearings whether he believed the AUMF authorized the government to open first-class mail, Gonzales refused to answer.
1.8.2007 2:31pm
AF:
Even if the signing statement referred only to the exigent-circumstances exception to the Fourth Amendment warrant requirement, wouldn't it still be an attempt to expand executive power?

Isn't Congress authorized (as long as it is operating within its enumerated powers, eg, to establish post offices) to impose its own statutory warrant requirements without necessarily incorporating Fourth Amendment exceptions? Doesn't this statute appear on its face to create a warrant requirement without an exigent circumstances exception? Wouldn't a Fourth-Amendment exigent-cricumstances exception narrow this statutory warrant requirement and expand executive powers? These questions are only semi-rhetorical -- I think the answers are "yes" in principle but I don't know whether there is case law to the contrary.

Perhaps an exigency exception is required by the Executive Power clause -- such that a statute purporting to eliminate the exception would be unconstitutional. But even if so, is there any reason to assume that the exigent-circumstances power is coextensive with the exigent circumstances exception? Shouldn't there be situations where warrants aren't required by the Fourth Amendment but may be required by Congress?
1.8.2007 2:39pm
DJR:
Interesting question AF. I take it that the argument is that the 4th Amendment limits the government's power, including both the executive and Congress, while Art. I Sec. 8 gives Congress the plenary power to establish Post Offices (and Post Roads, whatever that is). I was going to respond that Congress cannot exercise its power in violation of another constitutional provision, but it seems like that is irrelevant to your premise -- That Congress could provide that "Mail shall be inviolate" and the executive would have no power, even with a warrant, to open it.

Off the top of my head I can't think of a reason that would not work.
1.8.2007 2:49pm
El Capitan (mail):
As I read this, the Administration interprets the Act as having two exceptions: (1) exigent circumstances, such as to protect human life and safety against hazardous materials (eg geiger counter/ticking time bomb); and (2)the need for physical searches specifically authorized by law for foreign intelligence collection.

The only reason that I don't think the second refers to the AUMF is the inclusion of the word "physical searches specifically" before "authorized by law." To my mind, that seems to rule out the AUMF. It would be quite the stretch to interpret the AUMF as "specifically" authorizing this type of "physical search[]."
1.8.2007 3:08pm
r78:
PatHMV

I have heard others make the point you make and you may very well be right. (The "Courts will decide what the law is . . ." approch is a bit troubling, but that is another topic.)

Also, IIRC, this administration has issued far more signing statements than any previous administration. So I would submit that this administration is either much more concerned about providing helpful guidance to to the exec. branch than any previous administration -or- it is asserting that the president views congressional enactments (which he signs) as sort of guidelines that he can interpret to mean what he wants.
1.8.2007 3:09pm
AF:
One argument is that statutory warrant requirements are intended to incorporate the Fourth Amendment's exceptions. See, e.g., United States v. Banks, 540 U.S. 31, 43 (2003) (knock-and-announce rule of 18 USC ยง 3109 meant to incorporate Fourth Amendment's exigent-circumstances requirement). Maybe Congress intended such an exception to the postal statute too.

But I still don't think statutory warrant requirements necessarily incorporate Fourth Amendment exceptions. Take the border exception. Is the border exception incorporated into the postal statute, such that foreign mail can be routinely searched? I doubt it. See United States v. Chemaly, 741 F.2d 1346 (11th Cir. 1984) (finding that border exception did not apply to statutory warrant requirement).
1.8.2007 3:23pm
Gary McGath (www):
I don't know what the signing statement means, but I've seen outraged statements by a number of bloggers who'd read only the NY Daily News article or one of its clones and were convinced Bush is claiming the right to open people's mail and should be impeached. I'm glad to see someone looking into the question of what the statement really means without rushing to condemn or excuse.
1.8.2007 3:25pm
Byomtov (mail):
The courts will decide what the law is. If the USPS opens your mail, it will not be doing so pursuant to any authority granted under the signing statement, but only pursuant to the authority of the underlying legislation or recognized exigent circumstances under typical 4th Amendment jurisprudence. The presidential signing statement has no impact on your ability to discern what the law is.

All very nice, PatHMV. Your faith in the accessibility and usefulness of the courts, not to mention the timeliness with which they act, is touching. But don't we generally rely on the unwillingness of USPS employees to break what they understand to be the law to avoid having our mail opened. What happens when their boss tells them it's fine - the President said so? Will the employee go to court to find out the law, or just do as he is told?
1.8.2007 3:28pm
Steve:
Isn't Congress authorized (as long as it is operating within its enumerated powers, eg, to establish post offices) to impose its own statutory warrant requirements without necessarily incorporating Fourth Amendment exceptions?

In theory, I guess so. In practice, there's simply no reason to think that this statute was intended to do away with the traditional exceptions to the warrant requirement, such as the right to open a ticking package. Congressional enactments often leave gaps, after all.

In an orderly system, what would happen is that the President would issue a signing statement saying, more or less, "I'm going to tell the Executive Branch that they can still open ticking packages," and then if Congress has a problem with that, they can pass a new bill that explicitly says "no, you can't open anything without a warrant, even if it's ticking." In the real world, of course, Congress would never do such a thing, but the signing statement serves the purpose of keeping it all above-board. There needs to be a certain amount of give-and-take between branches if the system is going to work properly.
1.8.2007 3:46pm
Anderson (mail) (www):
It would be quite the stretch to interpret the AUMF as "specifically" authorizing this type of "physical search[]."

Agreed, but this White House is Mr. Fantastic when it comes to the AUMF.
1.8.2007 3:48pm
Kovarsky (mail):
Orin,

The administration may also perceive some qualified immunity-type benefit from the statement.
1.8.2007 3:55pm
El Capitan (mail):

Isn't Congress authorized (as long as it is operating within its enumerated powers, eg, to establish post offices) to impose its own statutory warrant requirements without necessarily incorporating Fourth Amendment exceptions?


But this begs the question. President Bush is saying "this isn't what I'm interpreting Congress as saying." Which is probably correct. It seems palpably absurd that Congress would demand a warrant if a magistrate wasn't readily available and a package was suspected of containing uranium or a time bomb. Even strict textualists allow for departures from the plain meaning to avoid absurd constructions of a statute.
1.8.2007 3:55pm
AF:
El Capitan and Steve,

I agree with you. See my second post. I think Michael Dorf put it well:


Ultimately, at least with respect to the exigent circumstances point, this is probably a case of the President who cried wolf. We are so accustomed to Bush signing statements that either gut the statute passed by Congress or construe it to mean the exact opposite of what Congress likely intended that we have a hard time recognizing a reasonable interpretation when one comes along. It strikes me as utterly appropriate to say that there is an exigent circumstances exception to the requirement of a warrant to open mail. The statute does not rule one out and we can easily imagine an exigency in which it would be madness to delay for even a second to obtain a warrant: e.g., a piece of mail that smells of gunpowder and is ticking. To continue the wolf metaphors, this signing statement -- or at least the exigent circumstances portion of it -- may be a sheep in wolf's clothing.
1.8.2007 4:02pm
markm (mail):
The biggest issue with thinking the courts will sort this out, is how would it get into court in the first place?
1.8.2007 4:25pm
DJR:
>It seems palpably absurd that Congress would demand a warrant if a magistrate wasn't readily available and a package was suspected of containing uranium or a time bomb.

But we aren't really arguing about the ticking time bomb. The troublesome part is the purported "need for physical searches specifically authorized by law for foreign intelligence collection," which means whatever mail the President wants to open under his view of th AUMF.

The democratic congress should repeal that sucker.
1.8.2007 4:33pm
El Capitan (mail):

But we aren't really arguing about the ticking time bomb. The troublesome part is the purported "need for physical searches specifically authorized by law for foreign intelligence collection," which means whatever mail the President wants to open under his view of th AUMF.

The democratic congress should repeal that sucker.


Again, I'm not sure the AUMF "specifically" authorizes any warrantless physical searches (though FISA does).
1.8.2007 4:39pm
cfw (mail):
It looks like a set up change in the law, to allow a signing statement, to give AG Gonzalez and his minions a defense if they are called on the carpet by Democrats for opening mail.

Who uses the mail these days for sensitive shipments? It does not seem worth investigating what Bush meant with Congressional subpoena powers.

The signing statement provides another good argument for switching sensitive mail to private carriers.
1.8.2007 4:55pm
CJColucci:
I get piles of junk mail I rarely bother to open. Maybe I'll box it up and send it to the White House.
1.8.2007 5:18pm
Al Maviva (mail) (www):
I mulled the act and signing statement over and I'm not entirely sure of what to make of it, though I'm a lot less suspicious than the "experts" cited by Newsday. "Exigent circumstances" is pretty clearly defined by the courts, and making that showing involves carrying a "heavy burden" of proof, an objective test. The term is a term of art, and it is also supported by statutes and regulations describing how exigent circumstances postal searches are to be carried out. So I don't think that reference is exactly a sweeping new power.

I'm also skeptical that the last part of that paragraph in the signing statement invokes the AUMF as a rationale for warrantless search. Doing so ten days before a Dem congress takes power would be remarkably politically tone deaf, and the AUMF strikes me as a bit too general to pass the test of "specifically" "authorized by law." Such postal searches do exist, and they include Customs searches for prohibited monetary or tech transfers, those pesky exigent circumstances searches which are authorized under postal law and regulation, and the FISA searches (and activities like searches) authorized under foreign intel surveillance procedures. I don't think the general authorization language of the AUMF passes the laugh test compared to the specifically authorized searches that do exist. Is it possible that this is the purpose of the statement? Sure. It would be pretty exceptionally bad lawyering, however, IMNAAHO.

I think critics need to ask if they really want the statute enforced in the iron-clad locked down manner they are suggesting is appropriate. If the statute is to be taken at its face, all those other searches, except for a pre-meditated FISA search conducted once a warrant has been obtained are off limits. Good luck on getting that FISA warrant on the ticking package, BTW; it's a warrantless seizure to hold up the letter until you can manage to fill out the extensive FISA warrant paperwork, get a FISA judge to sign off on a warrant, etc. Better hope it's not a next-day delivery package.

If the package is ticking and white dust is wafting out and the chem/bio and radiological detector sirens are howling, should the postman really be compelled to deliver the package to the local federal judge/abortion clinic/animal products testing lab? And what kind of a risk should we submit the postal service to, in light of the contamination, illnesses and death to which they were exposed by the 2001 postal anthrax attack? Moreover, Congress usually provides "notwithstanding" language when they want a bill to be that absolute, as in "notwithstanding any other laws, no searches unless you have a warrant in your hands."

Yes, maybe it's possible that this was a claim of sweeping new powers, but it would be the dumbest possible political maneuver, give the Dems a big political gift before the media honeymoon effect wears off, and likely result in court losses if the policy was ever tested. Besides, it's a signing statement, and when have you ever known this administration to attempt to grab power by publicly announcing they were doing so first?

That's why I read it more as a statement that the Act would be interpreted to the extent possible as consistent with and giving effect to other previously existing law. Just doesn't make much sense, otherwise.
1.8.2007 5:21pm
Steve:
Again, I'm not sure the AUMF "specifically" authorizes any warrantless physical searches (though FISA does).

I'd feel more comfortable if the signing statement at least used the word "expressly." I don't feel a lot of confidence in what "specifically" means. It seems to me that if they meant FISA, they should have just said FISA, because vague lawyerisms don't really give a lot of direction to the Executive Branch, nor do they inform Congress of what the President's legal position actually is.
1.8.2007 5:24pm
Kelvin McCabe (mail):
As to how it would get to Court, the most likely scenario would be someone whose mail has been opened without a warrant, and whatever was contained within led to criminal charges. Defendant files motion to suppress evidence, citing the warrantless search, (assuming no standing issue) and eventually the prosecutor then has burden to prove the search was reasonable through some exception or whatever. Warrantless searches are still per se unreasonable absent an exigent circumstance...Coolidge v. New Hampshire. Then the case drags on and eventually the appellate court looks at the issue. Then after that, the supremes. So ya, the Courts will have this matter resolved in say... 5-7 years, unless the case gets remanded for a new trial and goes back up through the appellate courts, in which case you can add a few more yrs onto it :)
1.8.2007 5:32pm
PatHMV (mail) (www):
markm - This will get tested in court the same way all other actions of the executive and Congress get to court... either when some criminal defendant files a motion to suppress evidence seized from his mail without a warrant on the basis of the interpretation of the law given by the President in his signing statement, or when an individual sues the government for violating his constitutional rights by opening his mail improperly.
1.8.2007 5:33pm
Hattio (mail):
Al Maviva,
What makes you assume the President was signaling what it was going to do in the future through the signing statement? I would assume we are going to hear about opened (past tense) mail w/in the next three months. Actually, I give it 45 days.
1.8.2007 6:22pm
Just an Observer:

... in a manner consistent, to the maximum extent permissible, with ... the need for physical searches specifically authorized by law for foreign intelligence collection.


Note that this phrasing does not promise that searches will be consistent with the law, but with "the need" for physical searches that are now authorized by the law. So even if the law requires a warrant for such a search, the government could make its determination based on its "need."
1.8.2007 7:09pm
Steve:
I think critics need to ask if they really want the statute enforced in the iron-clad locked down manner they are suggesting is appropriate.

Yes, yes, you have won the War on Straw against all the nonexistent civil libertarians who want to do away with the exigent circumstances exception, so that a warrant will be required for a ticking package.

Yes, maybe it's possible that this was a claim of sweeping new powers, but it would be the dumbest possible political maneuver, give the Dems a big political gift before the media honeymoon effect wears off, and likely result in court losses if the policy was ever tested.

And that's exactly why you choose words that leave an ambiguity. On the other hand, if you're NOT claiming the power to do anything except what FISA allows, it would be trivial to cite FISA specifically. Even the word "expressly" would pretty much bar the door.

Is it slippery to claim that an implicit claim of authority under the AUMF counts as a "specific" authorization? Yeah, it would be, but given that the process is completely unreviewable, I hardly think it's beyond the limit of credulity to suggest that such a slippery wording might be involved.
1.8.2007 7:58pm
David M. Nieporent (www):
Can I just point out that if the package is ticking, you probably don't want to open it? X-Ray, perhaps. But open?
1.8.2007 11:17pm
Al Maviva (mail) (www):
Please, I'm not rolling out straw men here, and I didn't say it was beyond credulity that AUMF is referred to here. If the act really means *no* searches but for previously issued warrant, then that means no exigent circumstances search, along with no foreign intel surveillance search. Exigent circumstances is a constitutional doctrine, and Congress is free to raise the bar if it wishes - which is why we go on and on about FISA, it is a higher standard than the ordinary constitutional floor. Don't forget, the critique of this signing statement is two-pronged, that exigent circumstances/threat to life is a power grab relating to the threat from terrorism, or in the alternative the 'specifically. . . authorized by law' statement is a power grab. I agree that the Administration has cried wolf, it's precisely because Gonzales has voiced some ridiculous opinions about what AUMF authorizes, that people can read this signing statement as purporting to authorize sweeping new powers. I don't view it that way due to the problems of reading the PRA literally. Instead I read the statement as following a maxim of statutory construction, attempting to give effect to all the laws Congress passed on this topic, not just the most recent.
1.9.2007 8:02am
DJR:
Orin,

This is really the problem with blogging at VC rather than orinkerr.com. There is s surfeit of commenters who are fundamentally wrong, often because they lack legal training, but they are smart enough that people want to refute them, which results in a discussion that utterly misses the point.

That's not to mention the out and out wingnut commenters.
1.9.2007 9:03am
Anderson (mail) (www):
As to how it would get to Court, the most likely scenario would be someone whose mail has been opened without a warrant, and whatever was contained within led to criminal charges.

Assuming that "someone" wasn't designated an enemy combatant and locked up Padilla-style for a few years.
1.9.2007 9:37am
Al Maviva (mail) (www):
Anderson, thanks for making DJR's point for him.
1.9.2007 11:44am
markm (mail):
Al Maviva, what's your point? Padilla was locked up without a hearing or access to counsel for several years - and now that charges have finally been filed, they don't resemble the original claims about why he was locked up. Are you OK with the President having the power to grab American citizens off the street in the USA and make them disappear just by claiming that they are "enemy combatants", without a hearing? I'm not too worried about Bush having that power for a couple more years, but think about a Nixon or a Clinton having the same power.

As for getting a case about opening letters into court, first you've got to have evidence or an admission from the government that your letters were opened. You'll only get that admission if you are in fact a criminal that got caught by opening your letters. If you are merely a political opponent that an unscrupulous administration wants to spy upon, do you think you could prove that damaged envelopes and letters that never arrive weren't just the usual USPO incompetence? I see nothing in that signing statement that limits opening letters for foreign intelligence to foreign mail.

As for "exigent circumstances" like an apparent bomb or anthrax-filled envelope:

1) Don't Post Office regulations already cover these?

2) Regardless of regulations, I would expect the authorities to intercept these and handle them as safely as possible. I just want them to come into court later and have their actions reviewed. If you give them carte-blanc without any third-party review, you're opening all kinds of possibilities for abuse.
1.9.2007 3:24pm
cfw (mail):
DJR:

This is really the problem with blogging at VC rather than orinkerr.com. There is s surfeit of commenters who are fundamentally wrong, often because they lack legal training, but they are smart enough that people want to refute them, which results in a discussion that utterly misses the point.

That's not to mention the out and out wingnut commenters.



Look, Orin, if you cannot make your points well here, with the unwashed masses, you are not going to have much long term impact in the chambers of judges. That is the nature of the beast that is 4th amendment law. You do well here - much better than in your own blog.

If you want to have your own blog for tenure purposes, with only 4th amendment scholars allowed to comment, fine. But this is where the real law-changing action is, in the blog arena.

If you cannot arm the DA's, AG's, appointed counsel and PD's to wrestle with all the issues, including political points and "opinions in search of authorities," you are staying too far back in the cloister.
1.9.2007 3:46pm
Kelvin McCabe (mail):
Agreed on the Padilla analogy. And i also agree, that in cases wherein real "enemy combatants" here in the u.s.a. are being investigated, the warrantless and clandestine searches of that person's mail likely would never get challenged, since it is unlikely that the person would a) even be offered a chance to challenge it and b) the person is likely fighting much more important battles (i.e, habeus corpus, torture, whatever).

But the warrantless searches -not just of mail but of phone calls and emails as well - no doubt lead to the person being disappeared in the first place - which is exactly why the battle against such clandestine government activities has to be fought. Not for the sake of the enemy combatants, i could give a **** about them, but rather, for you and I. Political considerations have to be taken into account - as the Padilla example shows, with an eager Attorney General and executive branch announcing "we got one" and wildly over exaggerating the nature of the case (dirty bombs in major cities). Then they use such hyserics to justify why they need the power to do x,y,z. In reality, it was bs. Scary stuff.
1.9.2007 5:11pm