There He Goes Again - And No One Cares [Bush / search and seizure]

[Bricker]

@treis

(1) None of the language that is being used is mine. I am using the wording that President Bush used.

(2) The law I quoted does not limit itself to US citizens, nor does it authorize searches of foreign persons mail.

Yes, it does. The law authorizes warrantless physical searches if the Attorney General certifies under oath that the search is solely directed at premises, property, information or materials owned by or under the open and exclusive control of a foreign power or powers. Mail between foreign persons could qualify; mail from or to US citizens could not.

(3) Do you believe that Bush’s statement, “the need for physical searches specifically authorized by law for foreign intelligence collection” refers to the very limited situations authorized by 50 U.S.C. § 1822? If so, what evidence do you have that this is the case?

Yes, I do. My evidence is the statement itself, which limits itself to “…physical searches specifically authorized by law for foreign intelligence collection.” I am unaware of any other law authorizing foreign intelligence collection.

[Jodi]

@Bricker

Even the ACLU simply says that the practice “raises serious questions.” Well, I have no problem agreeing with that – it raises questions. Clearly it raises questions; we are debating these questions now.

I object to the OP’s characterization of the answers to these questions as forgone conclusions.

Seriously? You agree that the action raises questions, I assume would concede serious questions in light of the whole appearance-of-impropriety side of it, yet you objection is that the OP presented too forcefully his answer to those serious questions?

You admit that signing statement are at least in part an attempt by the President to broaden his presidential powers, and I assume would concede that is not what they were intended for, but you have no problem with that?

You equate creating outrage in the blogosphere with favorably shaping public opinion?

I have no interest in piling on you, my friend, so I’ll be bowing out at this point. But please consider stepping back and evaluating whether the arguments in favor of this practice are really worth your formidable powers of defense – especially in light of the fact that you claim the only dog you have in this fight is objecting to the forcefulness with which the OP’er stated his opinion. Bon nuit, all!

[treis]

@Bricker

Yes, it does. The law authorizes warrantless physical searches if the Attorney General certifies under oath that the search is solely directed at premises, property, information or materials owned by or under the open and exclusive control of a foreign power or powers. Mail between foreign persons could qualify; mail from or to US citizens could not.

Mail between mere foreign persons does not qualify. The law says foreign power, and no where in the definition of foreign power is a mere foreign citizen included. Even if you want to extend that definition to an agent of a foreign power, which I don’t object to, a mere foreigner still isn’t included.

The only instances where I can see this law applying to the mail is parcels/letters is (1) mail sent from one person who is not legally authorized for permanent residence in the U.S., to another person not legally authorized for permanent residence in the U.S., or (2) mail sent from an agent of a foreign power to another agent of a foreign power.

@Bricker

Yes, I do. My evidence is the statement itself, which limits itself to “…physical searches specifically authorized by law for foreign intelligence collection.” I am unaware of any other law authorizing foreign intelligence collection.

That evidence is extremely weak considering the very limited nature of the congressional authorization, and Bush’s propensity to exert powers such as these as inherent constitutional powers granted to the executive branch. It is very difficult for me to believe that Bush wanted to simply clarify a very specific, and very technical exception to this law.

[Hamlet]

@Bricker

Yes, I do. My evidence is the statement itself, which limits itself to “…physical searches specifically authorized by law for foreign intelligence collection.” I am unaware of any other law authorizing foreign intelligence collection.

But Bush has already proven he thinks he is not bound by FISA (or any other law “infringing upon his foreign intelligence collection”, why would he suddenly have a change of heart now?

[Bricker]

@Hamlet

But Bush has already proven he thinks he is not bound by FISA (or any other law “infringing upon his foreign intelligence collection”, why would he suddenly have a change of heart now?

There’s a difference between his approaches. He can say, “I believe this law infringes on my Constitutional perogatives, so I won’t obey it.” You may disagree, but he’s making his position clear.

Or he may say, as he has here, “I will follow the law, which is X.”

You’re taking his first action as evidence he’ll renege on his statements made pursuant to the second action.

[Orbifold]

I find the “we have always had the right to open your mail” policy to be a little odd considering how much weaseling Gonzales did when asked point-blank about opening U.S. citizen’s mail last February:

SPECTER: Well, then, let me ask you this.

Under your interpretation of this, can you go in and do mail searches? Can you go into e-mails? Can you open mail? Can you do black-bag jobs?

And under the idea that you don’t have much time to go through what you described as a cumbersome procedure, what most people think is a pretty easy procedure, to get a FISA warrant, can you go and do that of Americans?

GONZALES: Sir, I’ve tried to outline for you and the committee what the president has authorized, and that is all that he has authorized.

LEAHY: Did it authorize the opening of first-class mail of U.S. citizens? That you can answer yes or no.

GONZALES: There is all kinds of wild speculation about…

LEAHY: Did it authorize it?

SPECTER: Let him finish.

GONZALES: There is all kinds of wild speculation out there about what the president has authorized and what we’re actually doing. And I’m not going to get into a discussion, Senator, about…

LEAHY: Mr. Attorney General, you’re not answering my question. I’m not asking you what the president authorized.

Does this law – you’re the chief law enforcement officer of the country – does this law authorize the opening of first-class mail of U.S. citizens, yes or no, under your interpretation?

GONZALES: Senator, I think that, again, that is not what is going on here.

We’re only focused on international communications where one part of the communication is Al Qaida. That’s what this program is all about.

LEAHY: You haven’t answered my question.

[Kalhoun]

@gonzomax

President is a nutcase. he is anti American. The fundimental rights that made us what we are are nothing to him. He does what he wants. I hope congress and the senate can handcuff this jerk.

Agreed, agreed, and agreed. But remember…he appeals to a “higher father”, and that makes everything OK. Which is why most Americans won’t question his actions.

[Hamlet]

@Bricker

There’s a difference between his approaches. He can say, “I believe this law infringes on my Constitutional perogatives, so I won’t obey it.” You may disagree, but he’s making his position clear.

Well, just to be factually correct, he made his position clear only after years of breaking the law in secret, and only after he was caught.

@Bricker

Or he may say, as he has here, “I will follow the law, which is X.”

You’re taking his first action as evidence he’ll renege on his statements made pursuant to the second action.

Your conclusion is nothing more than a rationalization. Why would the President suddenly change his mind, and think that, only in regard to mail, is he bound by the law? Fortunately, he wasn’t around when FISA was enacted, so he didn’t have a chance to attach a signing statement to it. He as proven his position in regards to “the law of foreign intelligence collection” It makes a lot more sense that he’s stating he continues not to be bound by any law that infringes on his foreign intelligence gathering than that he wants to “foster debate.”

[E-Sabbath]

@Bricker

My cites apply to Fourth Amendment law, period. Why would you believe that there is a particular exception for Domestic First Class mail? Like anything else, if exigent circumstances exist, mail can be opened without a warrant.

This objection is discussed in the conversation between Jodi and me, above.

I’m sorry, Bricker, but in the quotes of law above, one was for customs agents being able to open packages and/or mail coming over the border.

I think the key word here is ‘domestic’. Can you expand on that part of the previous question?

[E-Sabbath]

(Whups. This thread gained two more pages I missed. My apologies for replying to something on page 1.)

[E-Sabbath]

@Hamlet

A couple things:

From Ex parte Jackson, 96 U.S. 727 (1877)

“Letters, and sealed packages subject to letter postage, in the mail, can be opened and examined only under like warrant, issued upon similar oath or affirmation, particularly describing the thing to be seized, as is required when papers are subjected to search in one’s own household. The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers thus closed against inspection, wherever they may be.”

From US v. Ramsey, 431 U.S. 606, (1977)

“From Border search exception is grounded on the recognized right of the sovereign to control, subject to substantive limitations imposed by the Constitution, who and what may enter the country; there is nothing in the rationale behind the border search exception to the search warrant requirement which suggests that the mode of entry is critical; no different constitutional standard should apply merely because envelopes which are searched by customs officers are mailed rather than carried into the country; the critical factor is that the envelopes cross the border and enter the country, not that they are brought in by one mode of transportation rather than another.” (upholding warrantless searches of international mail by customs agents).

Here’s his signing statement..

Here’s a relevant part:

"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.

The executive branch shall construe provisions of the Act that call for executive branch officials to submit legislative recommendations to the Congress in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and to recommend for congressional consideration such measures as the President shall judge necessary and expedient. Such provisions include subsection 504(d) and section 2009 of title 39, as amended by section 603 of the Act, and sections 701(a)(2), 702(b), 703(b), 708(b), and 709(b)(2) of the Act."

Now, I’m not Bricker, but I’m sure he’ll be along to tell everyone that they are overreacting because the President, in his signing statement, is only saying that he’ll operate legally under the exigent circumstances exception to the 4th Amendment. Then he’ll pat us all on the head and send us to bed.

However, there are two phrases that concern me. The first is “and the need for physical searches specifically authorized by law for foreign intelligence collection.” Now, this could mean that the President will utilize FISA in obtaining judicial orders before opening mail that he, in his sole discretion, determines to be for “foreign intelligence collection.” However, given this administrations track record of interpreting the Constitution and violating the law, I think there is a good argument that Bush thinks that “by law for foreign intelligence collection” means whatever, wherever, and to whomever he wishes. That seems to be the way he’s interpreted his duties to enforce the law under FISA, and it would fit this administrations distaste for the Constitution to argue that the entire 4th Amendment does not apply to ANY searches, no matter how, done “for foreign intelligence collection.” Of course, just like the NSA, we may never know what he’s actually doing.

The second is a much more minor phrase: “The executive branch shall construe provisions of the Act that call for executive branch officials to submit legislative recommendations to the Congress in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch”. The “unitary executive” are, to this administration, magic words that mean whatever the fuck I want. This wouldn’t be the first time this administration claims it need not report to the legislature about anything it does.

No, after careful examination of pages two and three, I fail to see any reasonable response Bricker has made to this post. Bricker, could you carefully deconstruct this, insofar as it may involve mail from american citizens to american citizens, within these United States, who may be tangentially involved in foreign affairs? Notice that Gonzales has refused to say it will not happen, in front of Sen. Leahy.

Hamlet, Jodi, am I missing anything here?

[Bricker]

@E-Sabbath

No, after careful examination of pages two and three, I fail to see any reasonable response Bricker has made to this post. Bricker, could you carefully deconstruct this, insofar as it may involve mail from american citizens to american citizens, within these United States, who may be tangentially involved in foreign affairs? Notice that Gonzales has refused to say it will not happen, in front of Sen. Leahy.

Hamlet, Jodi, am I missing anything here?

In my view, there is no legal way for mail from American citizens to American citizens, sent within the borders United States, to be opened without a warrant OR the presence of exigent circumstances.

Notice that Gonzales did not say it will happen. Notice that Gonzales was trying to respond to a different question and kept getting interrupted.

Point to the portion of the Presidential statement that you contend he can rely upon to execute a single illegal search. Point to a statement by the Attorney General that says the he will interpret the law to permit a single previously-illegal search.

Where are those statements?

[elucidator]

@Bricker

…Notice that Gonzales did not say it will happen. Notice that Gonzales was trying to respond to a different question and kept getting interrupted…

Just so. He was trying to respond to his own question, crafted by him to be more agreeable than the distasteful question being directed to him. We of lesser minds, not gifted with law degrees, call that sort of thing an “evasion”. Being skeptical, we are suspicious when direct questions are evaded, we tend to think simple facts are being obscured in legalistic humbuggery.

[E-Sabbath]

Now, what of the matter of American Citizens to American Citizens who live within the United States, but have outside contacts?
What of the matter of American Citizens to Non-American Citizens, still within the United States?

[Una_Persson]

@elucidator

We of lesser minds, not gifted with law degrees, call that sort of thing an “evasion”.

I call it being a weasel (that is, Gonzales was). The quote clearly shows an indefensible evasion by him. I don’t see how it can be interpreted any other way.

[Bricker]

@E-Sabbath

Now, what of the matter of American Citizens to American Citizens who live within the United States, but have outside contacts?
What of the matter of American Citizens to Non-American Citizens, still within the United States?

Without a warrant or exigent circumstances, neither of those are permissible. The Attorney General must be able to certify that “there is no substantial likelihood that the physical search will involve the premises, information, material, or property of a United States person.”

That’s very clear. A letter FROM an American citizen mailed inside the country could not be opened without a warrant OR exigent circumstances.

And that’s what Bush’s signing statement says.

[Bricker]

@treis

Mail between mere foreign persons does not qualify. The law says foreign power, and no where in the definition of foreign power is a mere foreign citizen included. Even if you want to extend that definition to an agent of a foreign power, which I don’t object to, a mere foreigner still isn’t included.

The law excludes “United States person[s].” A “mere foreigner” is not a “United States person.”

[Bricker]

As I asked above:

@Bricker

Point to the portion of the Presidential statement that you contend he can rely upon to execute a single illegal search. Point to a statement by the Attorney General that says the he will interpret the law to permit a single previously-illegal search.

[elucidator]

Wouldn’t expect such, any more than I would expect a burglar to leave a reciept.

[wring]

@Bricker

As I asked above:

I won’t shout but “point to the single unequivocal answer Gonzales gave to that specific answer”

IOW, counselor, when asked specifically ‘will you intrepret this to mean the Pres will warrentlessly open mail from/to US citizens" Mr. Gonzales specifically failed to answer that simple yes or no question. How else should the citizens intrepret that except to understand Gonzales’ intent to issue exactly the same sort of weaselly response you keep on making - “I didn’t say I wouldn’t” gives him plausible deniability , if the answer was “No, I wouldn’t” why on earth would he have not simply said so?