Stealing power

Congress passes hundreds of bills each year, the vast majority being completely ordinary and uncontroversial. Funding for this or that; naming a bridge or highway in honor of some local hero; or approving a nominee for a seat on the Marine Mammal Commission. There is little debate, because as soon as the deed is done the Congress moves on to something else.

The Postal Accountability and Enhancement Act was intended to be one such wholly unremarkable piece of legislation. It passed both Houses without debate, or even recorded votes. However, the New York Daily News reports that the President issued a signing statement that would allow the Feds to open a person's mail- without a warrant or judicial oversight.

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.

Note how the President seems to imply that the legislation authorizes the opening of mail ("which provides for opening of an item of a class of mail..."), but the Act actually prohibits the opening of mail. Subsection 1010(e) says that "No letter of such a class of domestic origin shall be opened except under authority of a search warrant authorized by law...." This seems clear and unambiguous, but the signing statement incorporates the phrase "exigent circumstances", which anyone with a passing understanding of search and seizure law will immediately recognize. Wikipedia's definition is both accurate and simple:

An exigent circumstance, in the American law of criminal procedure, allows law enforcement to enter a structure without a warrant.... It must be a situation where people are in imminent danger, evidence faces imminent destruction or a suspect will escape.

Barring the example of the letter bomb, it is virtually inconceivable that the government could demonstrate the necessary exigency. An exigent circumstance exists when a law enforcement officer has actual knowledge of a crime in progress and reasonably believes that she must act immediately to save a life or preserve evidence- if the dealer is going to flush the crack down the toilet, the police will be able to bust in and save the evidence. It is not an exigent circumstance that someone suspected of criminal activity is receiving mail from someone else suspected of criminal activity, and the government believes that the mail contains information about the crimes.

The real meat of the signing statement seems to disregard the need for exigent circumstances altogether. This is a close reading akin to statutory construction. The statement is written like bad legislation, with too many commas. The language about exigent circumstances is immediately followed by a non-restrictive clause explaining exigent circumstances themselves ("such as to protect human life and safety against hazardous materials..."). The next clause is an entirely separate justification for opening the mail that has nothing to do with exigent circumstances- take the non-restrictive clause and other legally inoperative language out, and the statement becomes:

The executive branch shall construe... subsection 1010(e) of the Act... in a manner consistent... with the need to conduct searches in exigent circumstances... and the need for physical searches specifically authorized by law for foreign intelligence collection.

Read this way, there are two separate and distinct rationales for opening mail- 1) when exigent circumstances exist or 2) when necessary for foreign intelligence collection.

Would Congress have authorized that without debate? I doubt it.

Oh, what a day....

New Jersey will abolish the death penalty.

Iraq has arrested someone for Saddam's inhumane treatment- not the people taunting and cheering, the guy who snuck the cameraphone in.

In Ontario, a kid can have three parents.

The BBC...

sums it up succinctly: "Altogether, [Saddam's] execution as we now see it is shown to be an ugly, degrading business, which is more reminiscent of a public hanging in the 18th Century than a considered act of 21st Century official justice."

Saddam being hanged-GRAPHIC

The whole scene from the execution, taken from a cellphone camera. Defiant to the end, Saddam Hussein mocked Shiite cleric Muqtada al-Sadr moments before he was hanged. Hat tip to Appellate Law & Practice. Keywords: saddam hussein iraq bush execution hanging hanged executed

Saddam hanged

Let me start thusly: he was guilty, of that there can be no doubt. He was hanged for a massacre that had occurred over 20 years earlier, and the proof was incontrovertible. Despite that, I have serious reservations about the fairness of his trial- I find it an outrage that two judges were removed midstream for being insufficiently partial to the prosecution, and only a fool would argue that the outcome was not preordained. The procedures in place were substantially less rigorous than those at Nuremberg, and no one at Saddam's trial possessed even a fraction of the stature of Justice Jackson.

In the end, though, I am struck by Saddam's, well, humanity at the very end. The Bush Administration tried to demonize Saddam, a cross of Satan and Fonzie- snap his fingers and people die by the thousands. But when you read something like this, "'He just gave up,' said Mowaffak al-Rubaie, Iraq’s national security adviser. 'We were astonished. It was strange. He just gave up,'" you realize that he was just a man.

The usual people reacted in the usual ways.

The Vatican:

The execution punishes "a crime with another crime," said Cardinal Renato Martino, Pope Benedict XVI's top prelate for justice issues, in an interview published Friday with the Rome newspaper La Repubblica. "The death penalty is not a natural death. And no one can give death, not even the state," Martino was quoted as saying.

Great Britain:

"We oppose the death penalty in all cases, regardless of the individual or the crime," said Rob Tinline, spokesman for the British Foreign Office. "[But] it's an Iraqi trial, with Iraqi defendants, in an Iraqi court — it's a decision for the Iraqi authorities."

Jesse Jackson:

"Saddam's heinous crimes against humanity can never be diminished, but he was our ally while he was doing it," he said Friday. "Saddam as a war trophy only deepens the catastrophe to which we are indelibly linked."

I do not claim any special knowledge of the hereafter. I do not know whether Saddam will be rewarded with virgins and ambrosia, or burn in hell, or simply fade into the black. I do know that he was no monster. He was just a man. He both rose and fell at the behest of my government, and you can add one more body to the count that will stain my great nation's soul.

Saddam to hang tomorrow?

No rush or anything- just reiterates my belief that it was a kangaroo court from start to finish.

Thanks to Talking Points Memo for pointing the way on this. The FEC has handed down over $6 million in civil fines for campaign violations. What I find so interesting is that Freddie Mac was fined about $3.8 million.
Freddie Mac is officially known as the Federal Home Loan Mortgage Corporation. It was created by Congress, the President appoints five of the eighteen Directors, and it is extempt from taxation by statute. In other words, Freddie Mac is not just any other company- even if it is not part of the government (because it doesn't receive tax money, and is a publicly traded corporation with private shareholders), it has no existence apart from the government.

So here we have one government entity levying fines against another entity (kinda) of the government. Since Freddie Mac owes its existence to Congress, I can certainly understand that they have an interest in influencing elections. However, this strikes me as little more than a circle jerk- Freddie Mac makes improper contributions, the recipients of such contributions win election, the government fines FM, the fine money gets deposited in the Treasury, and then gets funneled back to FM through the two Federal oversight agencies Freddie Mac answers to.

If this seems a little conspiratorial, I admit that it is. But it just makes my eyebrows raise a wee bit....