February 22, 2007

"President Bush has quietly claimed sweeping new powers to open Americans' mail without a judge's warrant."

So the Daily News wrote back in January:
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."

A top Senate Intelligence Committee aide promised, "It's something we're going to look into."

Most of the Postal Accountability and Enhancement Act deals with mundane reform measures. But it also explicitly reinforced protections of first-class mail from searches without a court's approval.
What's really going on here? My colleague Anuj Desai has a spiffy little article explaining the law, where a lot hangs on the way the words "letter" and "mail" don't mean the same thing:
I conclude that the statutory prohibition on mail opening only applies to mail matter that falls into the category of “letter” - which, roughly speaking, is defined as a “message” or “communication” or “correspondence.” The prohibition on mail opening thus does not apply to mail matter other than “correspondence,” such as bombs, anthrax or any ordinary good. The statute bars the opening of letters without a warrant, subject to only one relevant exception: the “physical searches” provisions in the Foreign Intelligence Surveillance Act (“FISA”). The government may not open letters without either a warrant or following the procedures set forth in FISA. There is no “exigent circumstances” exception for letters, though the government may temporarily detain a letter for the purpose of obtaining a warrant.

On the other hand, the government may open other mail matter without a warrant subject only to the strictures of the Fourth Amendment. The Fourth Amendment does contain an “exigent circumstances” exception to the ordinary rule that a warrant is required. Thus, scenarios that might involve hazardous materials such as anthrax or a ticking time bomb would in many circumstances fall into this exception.
You can download the paper here.


vbspurs said...

Don't you love how the Daily News put it originally?

WASHINGTON - President Bush has quietly claimed sweeping new powers to open Americans' mail without a judge's warrant, the Daily News has learned.

They make it sound as he's sitting down at his desk, putting on his granny reading glasses, and personally sifting through our mail, looking for Axis of Weasels under the flaps.

"It takes Executive Branch authority beyond anything we've ever known."

You know what REALLY takes Executive Branch authority beyond the acceptable?

The powers of authority recently promulgated by President Chavez in Venezuela, for himself.

And such self-proclaimed watchdogs as "The People's Voice" say this is fine and dandy, and no way, it's not a dictatorship.

Now, the Daily News isn't The People's Voice, but the way they put it, you'd think Bush had ratcheted down democracy yet another notch, whereas Mr. Chavez was just looking out for the welfare of his people.

Viewpoints, my friends, are a dilly.


MadisonMan said...

I predict howls from the Right-Wing press when a Democratic President assumes the powers. I imagine that suddenly a more powerful Executive branch won't seem so salutary. But now they are quiet.

hdhouse said...

Victoria continues to slip her leash.....

Where oh where in the article cited does Chavez's powers come into play. This is about your Saint Bush telling the truth and not overstepping his bounds.... fat chance.

Bush isn't racheting down democracy. He is racheting up his presidental power. Kings and dictators do the same.

rafinlay said...

Just as, similarly, the Left-
Wing Press will stop noticing such things, once there is a Democrat in the White House again.

Richard Dolan said...

It's hard to imagine what Kate Martin or the unnamed "senior career US official" were thinking when they claimed that the Bush Admin had taken some "new and quite alarming" position (Ms. Martin), that is "beyond anything we've ever known" (the mystery "senior career" guy). Prof. Desai points out that the statute at issue rules out warrantless searches of "letters," leaving only packages subject to searches under a pure 4th Amend standard. Subjecting letters to a standard stricter than the 4th Amend would otherwise require seems the opposite of any "new and quite alarming" position that is "beyond anything we've ever known." But why let tiresome details like that get in the way of old fashioned if uninformed partisan bashing?

Quite apart from Prof. Desai's point about the postal statute at issue, there is nothing "new and quite alarming" or "beyond anything we've ever known" about the "exigent circumstances" exception to the 4th Amend's warrant requirement. That exception has been around for a long, long time.

Normally, of course, an individual learns of a warrantless search, and thus a possible 4th Amend issue, when the Gov't takes some action (e.g., a prosecution) based on the materials searched and seized. Typically, the def't moves to suppress, on the grounds that the Gov't failed to obtain a warrant and no exception to the warrant requirement was applicable. Whether the Gov't can establish the req'd exigent circumstances is a case-by-case inquiry and turns on the particular facts of each search. For present purposes, though, it's enough to note that there's nothing "new" or "alarming" about any aspect of that process -- it's been happening daily in federal (and state) prosecutions across the country for decades.

Whether the Gov't proceeds with a prosecution or not, the parties whose mail was opened may, if they wish, bring either a Tort Claims Act case or a Bivens action to challenge the warrantless search. Early in my career, when I was an AUSA, we had lots of civil cases in the office about what had been a long-standing CIA program of opening certain letters without a warrant. See, e.g., Birnbaum v. U.S., 588 F.2d 319 (2d Cir. 1978) (affirming, inter alia, award of damages of $1,000 to plaintiffs whose letters to/from the Soviet Union had been opened by the CIA). Here -- assuming the Gov't ever engages in the warrantless opening of packages -- there's no reason why any aggrieved party couldn't bring such a similar claim.

Presumably Ms. Martin and the mystery "senior career" guy know perfectly well that there is nothing "new and quite alarming" or "beyond anything we've ever known" in play here. Whether the reporter for the NY Daily News was aware that his "story" was bogus is another matter. It sounds more like a story that was planted, in a pre-packaged kind of way, that the Daily News used in part out of laziness and in part because it made a racy headline likely to appeal to a NY audience.

All par for the course in journalism (and agenda politics) today, but hardly the sort of thing that MM or hdhouse should be latching on to.

hdhouse said...

Richard -

Your legal points are interesting however the reality is that executive has assumed powers and interpretations that flow from rather nebulous references in the Patriot Act, his own signing statements, and programs such as these and others involving the ability to examine communications without warrant.

I am not sure we developed our system and the laws that govern it by assuming that the best of human nature will prevail. If that were the case, no laws would be required. So what the founding fathers came up with is a way for the executive NOT to behave like a king and his actions would be checked.

We have seen US citizens held without recourse to the courts. So, lets put it this way:

I have a number of friends (yes I do) in the USSR and more than a few who were involved at one time or another with their intelligence community. We correspond on occasion just to check on family etc. My mail could be opened without warrant and I could be held with no recourse based on someone's interpretation of the documents or just because I'm a SOB. Your example is fine and good if I have recourse or at trial (warrantless...)but if I am denied access to either - then what.

As a former AUSA, I am sure you know that things don't work perfectly and mistakes, inadvertant or in ignorance, happen...but two questions pop to mind: 1. Why the grab and the redefinition? 2. Why go there if it isn't necessary?

Sigivald said...

hdhouse: Which powers, specifically, evidenced where, related to what exact parts of the PATRIOT Act, please?

(I ask because of the long-standing heuristic that anyone that mentions the PATRIOT Act as the source of something nefarious without citing a specific part of it is almost always wrong about it.

I like being wrong with that heuristic [because I prefer real arguments to mistaken beliefs about legislation], but I rarely am, I find.)

What redefinition and grab are you talking about? Richard's (and Prof. Desai's) point is that nothing is being grabbed or redefined.

(I am sure as hell not taking Waxman's word for anything on a partisan issue. Ever.)

hdhouse said...


here it is: http://www.epic.org/privacy/terrorism/hr3162.html

I think these people are a little wacko but they delineate a number of issues in the act that should be discussed. http://www.bordc.org/

what is bothering me so much and i think bothers so many others is that the president has "assumed powers". no one seems to know what these are or how it came about. per gonzales it appears that anything that isn't nailed down belongs to him. a liberal reading of the PA, because of the haste in writing and the very broad and unspecific wordings that even i - a NON LAWYER - wonders what it means and when I ask my friends who are lawyers what it means they really can't tell me, and when I ask my representative, he sometimes has responded that he didn't even know it was in the Act.

If you want a specific, Section 802 of the USA PATRIOT Act creates a federal crime of "domestic terrorism" that broadly
extends to "acts dangerous to human life that are a violation of the criminal laws" if they "appear
to be intended…to influence the policy of a government by intimidation or coercion," and if they
"occur primarily within the territorial jurisdiction of the United States."

a further example: Section 213 contravenes the "common law 'knock and announce' principle," which forms an
essential part of the Fourth Amendment's reasonableness inquiry.18 When notice of a search is
delayed, one is foreclosed from pointing out deficiencies in the warrant to the officer executing it,
and from monitoring whether the search is being conducted in accordance with the warrant. In
addition, Section 213, by authorizing delayed notice of the execution of a warrant to conduct a
seizure of items, contravenes Rule 41(d) of the Federal Rules of Criminal Procedure, which
requires that, "The officer taking property under the warrant shall give to the person from whom or
from whose premises the property was taken a copy of the warrant and a receipt for the property
taken or shall leave the copy and receipt at the place from which the property was taken."
Under Section 213, notice may be delayed for a "reasonable period." Already, DOJ has staked
out its position that a "reasonable period" can be considerably longer than the seven days
authorized by the Second Circuit Court of Appeals in United States v. Villegas,19 and by the Ninth
Circuit Court of Appeals in United States v. Freitas.20 DOJ states in its Field Guidance on New
Authorities (Redacted) Enacted in the 2001 Anti-Terrorism Legislation21 that "[a]nalogy to other
statutes suggest [sic] that the period of delay could be substantial if circumstances warrant," and
cites in support of this proposition a case that found a 90-day delay in providing notice of a
wiretap warrant to constitute "a reasonable time." Notably, Section 213 is not limited to terrorism
investigations, but extends to all criminal investigations, and is not scheduled to expire.

and we could go on and on.

vbspurs said...

Personalising this story about "Bush" is the point.

Bush takes this, Bush does that, Bush quietly claims the other.

It's always Bush, which is a facile way for emotionally stunted people to work out their frustrations about a given administration.

That people do this is nothing new under the sun, since it is easier to hate one person, than a nebulous amount of others. But it is still ridiculous for what it represents.

That goes for both sides of the aisle -- it's just that when it was Clinton's turn at bat, in being 'victimised' by certain obsessed Republicans, the media pointed that out.

Whereas now, it leads the charge in personalising government authority as something Bush does for his OWN overweening sense of power.


hdhouse said...

victoria remains off her leash i see....

the reason it is personalizing is that bush takes the power. proofs in the pudding...or are you going to believe dick cheney or your lying eyes....

give it up vickie...you can't support this with a straight face.

vbspurs said...

Enjoy this rare moment of acknowledgement that you pollute my environment with your presence, hd.

You mean nothing to me. Your thoughts don't concern me.

Leave me alone. Don't call me by name. Pretend I am dead.

Starting now.

PeterP said...

They make it sound as he's sitting down at his desk, putting on his granny reading glasses, and personally sifting through our mail...

"Hey, Laura honey. You seen my paper-knife? I just can't seem to get these e-mails to open."

RMc said...

I have a number of friends (yes I do) in the USSR

I don't know what's more surpising: the fact that you have friends, or the fact you're a time traveller...