You’ve got mail — which Bush thinks he can read

January 4, 2007

Ah, those pesky signing statements. You just never know what White House lawyers will quietly put in there.

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.

Bush’s move came during the winter congressional recess and a year after his secret domestic electronic eavesdropping program was first revealed. It caught Capitol Hill by surprise.

I suspect the president’s supporters will argue that terrorists might send mail, and law enforcement officials need to be able to review that mail in order to keep Americans safe.

That’s true, but a) there’s already a legal mechanism in place to intercept suspicious mail; and b) it’s beside the point. As Henry Waxman (D-Calif.), the incoming House Government Reform Committee chairman, who co-sponsored the bill, explained, “Despite the President’s statement that he may be able to circumvent a basic privacy protection, the new postal law continues to prohibit the government from snooping into people’s mail without a warrant.”

The closer one looks at the signing statement, the worse it looks.

The legislation in question, the Postal Accountability and Enhancement Act, is mostly mundane, but as the New York Daily News noted, it also explicitly reinforced protections of first-class mail from searches without a court’s approval. Bush signed the bill, but gave it a little after-the-fact touch-up — his signing statement said he’d ignore the privacy provisions under “exigent circumstances.” That could refer to an imminent danger, or it could refer to “a longstanding state of emergency.”

But what about the proverbial “ticking bomb” nightmare? Under existing law, before the signing statement, the Postal Service is already empowered to block delivery of suspicious mail, and the administration could quickly get a warrant from a criminal court or a Foreign Intelligence Surveillance Court judge to search targeted mail. The Bush White House has decided to short circuit that process, giving itself the power it wants.

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.”

I wish I had a nickel for every time I’ve heard that sentence the last few years.

For the historical record, the several signing statements this president and his aides have written will no doubt serve as evidence of this president’s lawless cult of personality. Yes, if we as a democratic people survive into the future, our history will not be kind to Mr. Bush. He has really screwed up! -Kevo

  • Bush is like the subject of a restraining order who keeps threatening his victim. He’s like the rightwinger with the site that says he “may” have to assasinate legislators. The cops can’t do anything till they break the law even though, like Bush, they announce their intentions to break the law.

  • I don’t get signing statements. A president can put out some document saying– oh, I don’t know– he can enforce whether newscasters wear makeup– and say it’s attached to a telecommunications bill he’s just signed, but that how does that give it the force of law?

    Seems to me the attitude should be, put out whatever statement you want– if Congress didn’t pass it, it doesn’t mean diddly.

  • SOP. Just another power-grab for the imperial presidency. Bush probably doesn’t understand why his handlers want to give the president the powers of an emperor. He understands that he gets more power and that’s fine with him.

  • Another signing statement is just one more thing for the Democrats to investigate.

    Is this just one more thing to “eat up the clock” so that the Democrats will pass less legislation—or is it one more opportunity to thoroughly discredit one of the most extreme and incompetent presidencies in history?

  • I agree with Scott (#4): if Congress didn’t pass it, it ain’t law; if Congress did pass it, it’s law. It’s the President who’s breaking the law here, since he swore an oath to all of us to preserve, protect and defend our Constitution — or did the Founders attach signing statements to the Constitution?

    Just like organized crime, the Bush Crime Family thinks it is above (or below or aside from) the law. As with other cases of organized crime, I sincerely hope the hearings planned by Democrats will find a way to get all the vermin sooner or later, or at least make that Paraguayan refuge look mighty attractive (maybe by then we’ll have an effective CIA demonstrate for them what going around the law means).

  • Scott,

    While I’m not an expert on the matter, I think that’s what most courts probably would say if the matter came before them (i.e., that presidential signing statements lack the force of law and mean “diddly,” at least when they directly contradict the text of a statute). The problem is that no one has standing to challenge the president’s unilateral expansion of the scope of executive power until he actually exercises the authority he has claimed for himself and, more to the point, gets caught doing it. Since opening mail without a warrant is the sort of thing that will most likely be done in secret, it may be a long time, if ever, before the matter comes before a court.

  • I have the same question as Scott #4. What legal clout do these signing statements actually have? Have any been acted on and tested? And one more question: do they exit with kid George, or do they persist in perpetuity? And finally, can they be revoked, and how?

  • “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.”

    Well, back to the days of King George III at least.

    This is all Yoo’s fault and he and Cheney should be beaten with sticks.

  • “do they exit with kid George, or do they persist in perpetuity?” – Goldilocks

    Do the Republican’ts really want Hillary reading their mail?

  • I was about to post that all new legislation should include a provision that declares the bill to be final until modified by new legislation or struck down by the courts. Just like civil contracts, which often contain a clause that declares the contract to be the governing document and declares any side documents to be irrelevant.

    But as I wrote it up, I realized this is already covered by the Constitution.

    So now I think the Dems should introduce a sternly worded resolution that declares signing statements to be null and illegal and to request the President to stop making them.

  • Here’s one article about the legality of Presidential signing statements.

    “On the other hand: The argument against a president using signing statements to alter Congress’ intent as to meaning and enforcement of new laws is once again based in the constitution. Article I, Section 1 clearly states, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” Not in a Senate and House and a president. Along the long road of committee consideration, floor debate, roll call votes, conference committees, more debate and more votes, the Congress alone creates the legislative history of a bill. It can also be argued that by attempting to reinterpret or even nullify parts of a bill which he has signed, the president is exercising a type of line-item veto, a power not currently bestowed on presidents.

    Summary:
    The recent use of presidential signing statements to functionally amend legislation passed by Congress remains controversial and is arguably not within the scope of powers granted to the president by the Constitution. The other less controversial uses of signing statements are legitimate, can be defended under the Constitution and can be useful in the long-term administration of our laws. Like any other power, however, the power of presidential signing statements can be abused.”

    http://usgovinfo.about.com/od/thepresidentandcabinet/a/signing_2.htm

  • MY MOM SENT A BIRTHDAY CARD WITH MONEY… AND IT’S MISSING. HAND IT BACK CHIMPY.

    L. Kern… I think that’s how he plans to balance the budget in the next couple of years. We may have to start a Hawala for birthday money!

  • This is an outrage.

    The Democrats should force Bush to PUBLICLY make the case for this radical expansion of presidential powers. Like Lance said, let’s see how the wingnuts like it that a Democratic president (Hillary?!?!?!) would get to read their mail if they decided there’s “a longstanding state of emergency”.

    There should be a law that requires the next president (and all afterwards) take a test on what’s in the Constitution, and if they can’t pass, they can’t be president.

    Democrats, do what you promised. Defend the Constitution.

  • “Bush then issued a “signing statement” that declared his right to open people’s mail under emergency conditions.”

    So who determines these “emergency conditions”? And who determines when these “emergency conditions” are over?

  • silly #17! the bushies do, of course.
    and that’s the early a.m. edition of simple answers to troubling questions.

  • This is not the first story about BushCo opening mail. Shortly after the domestic spying program was revealed, there was a story about customs officials opening mail. In that case, the mail was resealed with green tape which allowed the recipient to know that it had been opened. At the time, I didn’t have a problem with it because it wasn’t done surreptitiously.

    I should have realized that Junior wouldn’t be happy with such limited powers. Give this guy an inch……. Ah!

  • The Dems don’t need to say anything to nullify the signing statements; if they contradict the clear intent of the bill to which they are attached, they don’t mean anything.

    There’s a potentially legitimate use to signing statements. They can clarify what the President’s understanding is on potentially ambiguous provisions in a bill, and help a later court to understand what both the legislators’ and the President’s intention was in making that bill a law, thus guiding later judgements if the language of the law seems unclear. If the bill’s language is clear, however, the signing statement contradicting it means nothing.

    I think the real danger here is ceding the President more power than he has. By viewing these signing statements as “alarming” we grant them a legitimacy they don’t deserve. Given that they are meaningless filigrees, they should inspire contempt, not alarm. They are just more evidence that this President has no idea what he is doing.

  • More on 14’s post. I’m not sure it answered the previous question.

    There is a real reason why the administration issues signing statements. *warning, I’m not a lawyer so take this for what its worth**

    There is a concept of intent in law. Legal-speak may seem overly complicated to lay people like us but the language is verbose in an effort to be very clear and very specific to the intent of the law’s framers.
    The best analogy I can come up with is the movie Bedazzled. The devil offers the protagonist what ever he desires but, being the devil, the wishes always come out wrong because the protagonist is not specific enough. He wants to have the love of his life but in wish for a quite life with her, he fails to specify that he would like to remain a man..

    The concept behind Presidental signing statements is very much in tune with the Devil’s tricks in Bedazzled. No seriously.
    There is gray area in even legaleze. No matter how specific you are with your language there will some day be a case where some specific issue isn’t directly covered. This is the reason we have judges. If the law were both black and white and absolute in scope we could just look up the issue and match it to the exact remedy in the law.
    The problem is, we do need a Judge to maintain the order of the legal process AND to make informed decisions in these gray areas. One of the metrics used to span a gray area is the perceived intent of the authors of a bill/law. If there is law on the books for X but we have a case that is X with some subtle twist.. how do we decide it? One thing to consider is the intention of the law (and the law writers and endorsers) and how they would have wanted to cover this variation.

    Bush’s signing statements are a pervision of this process. Bush didn’t invent signing statements. They were used in the past to put in the record a clear intent. Presidents don’t write law but they do approve it after all. The idea is, the President says I agree with this law as I understand it to say this… The hope is they can put a last minute shapping onto the law BUT NOT SIGNIFICANTLY ALTER THE LAW.
    Bush is a new monster entirely though. His signing statements, crafted by people like Cheney who feel the only failure of Watergate was the rebuke of a president. Bush’s signing statements actually say ‘I agree with this bill by signing it into law but I don’t REALLY agree with it because I reserve the right as Unitary Executive to ignore it whenever my duty as Commander in Chief make this law combersome.’

    That’s basically it. Bush (and his handlers in particular) refuse any law that they feel restrains the duties of the president. If they feel any law actually binds them they try to add intent exempting them from that law.
    In short, Bush believes he’s never signed a law that he has to obey because Congress can’t interfere with his authority.
    I don’t think a single person in the Whitehouse has ever read the section of the Constitution defining the role of Congress.

    Steven.

  • Crap, #21 was much more clear than me. 🙂

    I did forget to mention that the Democratic leadership should immedately rebuke Bush. Not in the official sense but they should come out publicly and point out to the American People that the president does not have the authority to sign a law while stating that he does not have to obey that law.
    They should also state in no uncertain terms that if the president is found to have violated a law, even one he signed, he will be charged and prosecuted.

  • SBandyk,

    Generally speaking, an executive officer’s “violating” a federal law by acting in excess of his statutory authority is not a criminal offense, though I suppose it arguably might be where opening the mail without a warrant is concerned. The usual solution in such a situation would be a civil suit seeking an injunction against future acts, and possibly in some circumstances money damages. The problem in this case, as I noted earlier, is that, if the FBI or the Postal Service or some other agency implements a policy of unwarranted mail searches, the operation would likely be classified and it may be difficult for anyone affected by it to obtain standing to challenge the practice in court. There’s also the knotty problem of standing to seek prospective relief– essentially, the person would have to show not only that his or her mail was improperly opened in the past, but also that there is a substantial likelihood of that person’s mail being opened again in the future unless a federal court issues an order forbidding the practice. Unfortunately, I suspect that this practice will continue until the next president puts a stop to it.

  • The FIC (Fascist in Chief) wants to read folks’ mail? Fine. Very fine. As in very fine talcum powder.

    The SOB want to read folks mail, so just include a little talcum powder in each letter sent, along with a note stating that it is simply talc, and is simply a protest of yet another illegal and immoral spying program.

    Now, any letters sent to friends and family can be preceded by a quick email or phone call stating the method of your protest. (Probably would not want to include the protest in bills being paid.)

  • Bush’s signing statements – like much else in his administration – have nothing in common with their traditional counterparts in previous administrations. His signing statements have no more relevance, for our Nation anyway, than his used toilet paper. They deserve a similar fate.

  • SBandyK

    I think you added some detail beyond my rather terse assertions 🙂

    I did forget to mention that the Democratic leadership should immedately rebuke Bush.

    An excellent idea, though not necessary to nullify the statement. However doing this would be useful politically, so long as the rebuke makes it clear that this is not a matter up for debate, and tying the statements to this President’s incompetence. Contempt, not alarm.

    the operation would likely be classified and it may be difficult for anyone affected by it to obtain standing to challenge the practice in court.

    There’s nothing to stop appropriate oversight committees of the congress from laying the practice bare. Then if the President continues with the practice, he can and should be impeached.

  • In a recent dissent, Justice Scalia gave a presidential signing statement considerable weight in his interpretation of a new law:

    http://www.boston.com/news/nation/washington/articles/2006/07/15/scalias_dissent_gives_signing_statements_more_heft/

    In his dissent, Scalia acts as if a signing statement is part of the legislative history – i.e. the official record that helps the court determine what Congress had in mind when it created the law. His empty, dishonest theory wrests on the notion that the president only signed the law because he believed it would be enforced a certain way. Therefore the signing statement should be given equal weight with the Congressional record. Scalia was joined by Alito and Thomas – which means that three Supreme Court justices believe signing statements have legal weight. (Alito helped craft the modern use of signing statement as a Reagan henchman in the 80’s.)

    It’s a completely corrupt and empty theory, of course. The legislative history is used to demonstrate the give and take that occurred in Congress – to help the court understand the compromises from both sides made to achieve consensus on the new law. A presidential signing statement it completely different, since it takes place AFTER the disagreements, compromises, and final agreement that took place while Congress created the law. The constitution is very clear: the President does not make law. Justices Scalia, Thomas, and Alito clearly disagree, however.

  • mail was resealed with green tape which allowed the recipient to know that it had been opened. At the time, I didn’t have a problem with it because it wasn’t done surreptitiously. — rege, @19

    Back to USSR. Erm, communist Poland. In the 50ties, any letter going abroad had to be brought to the PO, unsealed.The postal clerk read and sealed it. All letters from abroad came opened, with an “inspected” stamp on them. Later on, when the official line was that we were entitled to privacy, the unsealed letters were rarer and came within a plastic bag, with an “accidentally opened en-route” stamp on them. Which must have been a heck of a lot more expensive and inefficient to boot. Since all such “accidents” came only from US, Canada, West Germany, Israel, UK, France etc but not from USSR or Cuba or even China (a much longer trip than from Germany ), nobody ever believed they weren’t read.

  • Just another indictable offense by Bush. Impeachment will never work, the Republicants will block it and the propaganda machine will turn it into a circus, but once they leave office, all it will take is a courageous prosecutor, think Ronnie White in Texas or Eliot Spitzer in New York, and these bastards will wish they were impeached. Impeachment doesn’t get you sent to Leavenworth.

  • I’m going to start sending a lot more letters. And in each letter will be a little card. And on the card will be the words:

    Dear George – Go fuck yourself you nosy bastard!

    I like the talcum powder idea too.

    One thing I’ll just throw out here is the sheer futility of 99.999% of this Admin’s attempts to “make us safer.” Listen to our phone calls, track our e-mails, now they want open our mail. Yes, disgusting, shouldn’t happen in this country. But I always wonder who, exactly is going to do all of this work?

    Not Negroponte, he’s out of there [/snark]

    That’s what makes me just as angry as the abuse of the S.S’s. It is nothing more nor less than an infantile power grab. Bush wants to do it so he does it and leaves it to the help to work the details. Rather like a certain war.

    But of course some company or other (couchHaliburtoncough) will get a big contract (coughpileofcashcough) for handling this project and then…nothing.

    My country ’tis of thee, sweet land of banditry…

  • Talk about judicial activism! The Constitution outlines quite clearly the roles of the Congress and the President. If the President doesn’t understand what Congress passed, he can ask Congress to make a clarification. If he doesn’t like what Congress passed, regardless of whose idea it was, he can veto it. But nowhere does it say the President can add anything except his signature to a bill that has been passed by Congress.

  • Perhaps you can display your Harvard Degree before spouting off on who can read……:-/

    Liberalism truly IS a mental disorder.

  • George and his cronies are short-sighted, because less than 2 years from now it might be their mail being opened, or even them being waterboarded.

    All empires will eventually fall into decline, and the policies of this administration are hastening it for the US. With such a gap in wealth between the rich and the poor, if the economy stumbles (or when, because sooner or later, economies do), its not too hard to imagine a Venezuelan style election, where a populist of the Chavez variety is elected with massive support by the poor who are in the majority. How would the republican party feel about unitary executive powers in the hands of a socialist?

  • 33
    would you rather be a “prog” or a “con” ?
    The neo-con agenda has done a Hell of a job at ruining this great country.
    Let’s just pray that people like you and their demented voices will be silenced as the new progressive congress takes control.

  • “Dictator was the title of a magistrate in ancient Rome appointed by the Senate to rule the state in times of emergency. In modern usage, it refers to an absolutist or autocratic ruler who assumes sole power over the state… Modern dictators have usually come to power in times of emergency. Frequently they have seized power by coup, but some, most notably Benito Mussolini in Italy and Adolf Hitler in Germany achieved office as head of government by legal means (election or appointment), and once in office gained additional extraordinary powers.” (from Wikipedia)

    My heart bleeds for the people of America, and yet: how did this fascist get a second term? This is the real horror of today: we the people abuse our democratic rights by electing fascists to High Office. Berlusconi, Chirac, Blair, Bush, Putin: are these parodies on human beings the outcome of Democracy? Then forgive us, generations to come, for we know not what we do.

  • The President doesn’t have to follow the law, this was made acceptable by none other than Gerald Ford, the one who pardoned Nixon for doing just that.

    And obviously we have heard both Cheney and The Decider note that if the President does it, it cannot be illegal…so, ya, we’re f#cked

  • I doubt they need to actually open the envelope to read the contents. Bush can secretly read mail unless somebody blows the whistle.

  • The GD signing statements aren’t legal anyway, or at least they don’t have the wieght of actual law. They weren’t voted on in Congress, and they aren’t part of an Executive Order. So these statements are just a way to make W feel powerful. If they ever came up in court they would not have the weight of law and could not give Junior a pass.

  • These signing statements should be used as evidence that the president willingly has decided to break the law. A signing statement shows malice aforethought and should incontrovertably prove to a judge that W is not abiding by a separation of powers, as mandated in the Constitution, and feels he can make his own laws.

    I think I’ll stamp all my mail “classified” or “top secret” to make it even more criminal to read my mail.

  • New powers “could” be easily abused? Humph. The new powers will be easily abused. I hope the next president whomever that may be can roll back some of the sovietesqe policies that Bush has pushed though.

  • ***Perhaps you can display your Harvard Degree before spouting off on who can read***
    ——————————–moronic angsty conservative

    What—you mean they finally got rid of the pictures-only texts at Harvard? Students actually have to read now at Harvard, instead of having antiquated grad-asses read everything TO them? By the way—I can get “a Harvard Degree” online for $29.95—about the same cost as having a car repainted at Earl Schieb’s—40 years ago. I see kids walking out of two-year, store-front diploma mills with more business smarts than a Harvard MBA, and for a lot less “$$$,” so don’t bother spouting “Hah-vahd” like it was some holy pronoun….

  • Thanks to all for the clarification on legitimate and illegitimate uses of signing statements. I had wondered why anyone thought they could have any weight until I read the comment on the use of a presidential signing statement as legitimate grist for consideration of congressional intent in an minority opinion by Scalia, Thomas and Alito. That was terrifying.

    Also, just a thought concerning illiterate drive-bys- it’s always best to refuse to feed the trolls….

  • Hmm,
    perhaps I’m being pessimistic, but I wouldn’t be surprised to hear that something labeled “interesting” aka “threatening” gets found in the mail shortly, so that his kingly powers get enthroned, so to speak…

    And of course the information will be released on Fox “News” etc.

    I don’t understand why King George isn’t being impeached, those signing statements are blatently illegitimate…

  • This came up a while ago on C&L but I think I remember that Congress did get sick and tired of W’s overuse of the signing statements and sent up a slap on the wrist to get him to stop. It was written by Arlen Specter and said that all the signing statements could be ignored and questioned the constitutionality of them. Bush signed the damn thing and then attached a signing statement basically nullifying the whole thing.
    As of October 4, 2006, [Bush] had signed 134 signing statements challenging 810 federal laws. – Wikepedia http://en.wikipedia.org/wiki/Signing_statement

  • This president has totally forgotten his oath to preserve, protect, and defend the Constitution of the United States. His loathing of our civil liberties puts him in league with communitst and fascist dictators

  • “His loathing of our civil liberties puts him in league with communitst and fascist dictators.” – TL

    That or his fear of al Qaeda, who he imagines hates America and wants to kill him (and Cheney) for no other reason than our “freedoms” is driving him to destroy them all. Having done so, he will point out to Osama bin Laden (still not captured of course) that we left Saudi Arabia as he demanded and gutted our own constitution, so can we have peace now?

  • In a previous comment I referred to a story form January of last year about customs officials opening mail without warrants. For completeness, I would like to also note that such searches are entirely legal as of 2002. Here is an explanation form blogger Bruce Schneier.
    ________________________________________________________________________________________________
    U.S. Customs Opening International Mail

    Reuters is reporting that Customs and Border Protection is opening international mail coming into the U.S. without warrant.

    Sadly, this is legal.

    Congress passed a trade act in 2002, 107 H.R. 3009, that expanded the Custom Service’s ability to open international mail. Here’s the beginning of Section 344:

    (1) In general.–For purposes of ensuring compliance with the Customs laws of the United States and other laws enforced by the Customs Service, including the provisions of law described in paragraph (2), a Customs officer may, subject to the provisions of this section, stop and search at the border, without a search warrant, mail of domestic origin transmitted for export by the United States Postal Service and foreign mail transiting the United States that is being imported or exported by the United States Postal Service.

    If I remember correctly, the ACLU was able to temper the amendment, and this language is better than what the government originally wanted.

    Domestic First Class mail is still private; the police need a warrant is to open it. But there is a lower standard for Media Mail and the like, and a lower standard for “mail covers”: the practice of collecting address information from the outside of the envelope.
    _________________________________________________________________________________________________

    While we can debate whether this law is a good one, we cannot accuse BushCo of lawlessness on this count.


  • This is all Yoo’s fault and he and Cheney should be beaten with sticks.
    That would be cruel and unusual. No, Yoo and Cheney should be thrown into a 7 by 9 solitary cell, with no windows, alternating between days at a stretch of glaring white light and days at a stretch of pitch darkness, for two to four years, allowed out only to be waterboarded.

    They have declared that this type of treatment is civilized and humane, so we can be sure that they would much prefer it to being taken out for a few minutes and beaten with sticks.

    When they did this to Moussaoui, he came out insane. But since both of them are already out of their minds, they will not even suffer that (according to them trivial) level of damage.

    The Yoo-Cheney Treatment (TM): Like it says on the box, “Not an organ failure in a bagful!”

    • Comments are closed.