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January 07, 2007

Damned If You Do....

The controversy over the President's signing statement asserting the power to open U.S. mail without a warrant in an emergency provides a perfect example of the combination of almost willful ignorance and "gotcha politics" that continue to characterize the debate over the war on terror:

President George W. Bush has created more controversy over his domestic intelligence gathering policies with a previously unnoticed "Signing Statement" attached to a postal reform bill which claims federal officials can open U.S. mail without a warrant.

The law as passed by the House and Senate requires government agents to get warrants to open first-class letters.

But the presidential statement, signed on December 20, added that sealed mail can be searched 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."

The White House said the president is not claiming any new authority and that the statement does not change the scope of current law.

Spokeswoman Emily Lawrimore told CBS News White House correspondent Mark Knoller, "The signing statement merely recognizes a legal proposition that is totally uncontroversial: that in certain circumstances – such as with the proverbial 'ticking bomb' – the Constitution does not require warrants for reasonable searches."

But CBS News legal analyst Andrew Cohen questioned why the president felt it necessary to attach the language to the bill if nothing has changed.

"I don't think the White House would have included this language into a signing statement unless the feds were either already searching mail without a warrant or planning to do so," Cohen said. "And if the legal right to do so were as clear as the White House now says it's hard to believe that there was a need to remind everyone of the fact in a bill about the postal service."

You have to love this reasoning: according to Cohen these searches are not legal. So an overly secretive White House with contempt for the law is... deliberately calling attention to the fact that it is performing them? That makes sense.

Apparently the Executive branch is damned if it does assert its powers in an open and aboveboard manner and damned if it doesn't. Mr. Cohen's argument essentially amounts to this: There must be something wrong with what you're doing -- otherwise, why would you publicly assert your right to do it?

Is this not the way we want the Executive branch to operate? When did transparency suddenly become grounds for suspicion rather than a desireable good faith attribute of responsible government? But perhaps the ACLU would prefer the White House behave in a secretive manner:

"The signing statement raises serious questions whether he is authorizing opening of mail contrary to the Constitution and to laws enacted by Congress," said Ann Beeson, an attorney with the American Civil Liberties Union. "What is the purpose of the signing statement if it isn't that?"

She said the group is planning to file request for information on how this exception will be used and also asking whether it has already been used to open mail.

Postal Vice President Tom Day said Thursday: "As has been the long-standing practice, first class mail is protected from unreasonable search and seizure when in postal custody. Nothing in the Postal Accountability and Enhancement Act changes this protection. The president is not exerting any new authority."

Question for Ms. Beeson: would you even be filing this request for information if the President hadn't made his intentions known by signing statement?

The presumption that warrantless searches are inherently unconstitutional is both an ignorant and uninformed one; there are many, many instances where warrantless searches are perfectly legal. Andrew McCarthy elaborates:

As usual, this turns out to be a tempest in a teapot — notwithstanding the tut-tutting from Senators Susan Collins, Chuck Schumer and Hillary Clinton, as well as NYC Mayor Michael Bloomberg.

To reiterate, the Fourth Amendment prohibits unreasonable searches, not warrantless searches. Consequently, the courts have recognized for years that exigent circumstances justify agents in conducting a search without a judicial warrant.

Furthermore, the president has inherent authority under Article II of the constitution to conduct warrantless searches for national security purposes — at least when the nation is threatened by a foreign power. Thus, for example, did Clinton administration Deputy Attorney General Jamie Gorelick quite correctly insist, in 1994 testimony before Congress, that the president maintained the power to conduct warrantless national security searches even though Congress was then expanding FISA (the Foreign Intelligence Surveillance Act which governs national security wiretaps) to cover physical searches.

The Constitution protects us from unreasonable search and seizure - it most emphatically does not require a warrant for all searches: a fact some critics would do well to keep in mind.

Posted by Cassandra at January 7, 2007 11:32 AM

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Comments

For those who are interested in better informing themselves than would likely be the case by their having contented themselves with the McCarthy article, one might well start with http://mediamatters.org/items/200512210012. Such an inquiry also might provide some context in which the accuracy and intellectual honesty of the McCarthy article can be better evaluated.

Posted by: dgf at January 7, 2007 01:45 PM

Yes, Media Matters is a good impartial source of news information. From their website:

"Media Matters for America is a Web-based, not-for-profit, 501(c)(3) progressive research and information center dedicated to comprehensively monitoring, analyzing, and correcting conservative misinformation in the U.S. media."

Posted by: FbL at January 7, 2007 01:52 PM

Ad Homs bore me FbL, and tend to calcify and inhibit education.

By the bye, my bad, I guess on the what prompted my addition, above; I took the 3 paras. following Andrew McCarthy elaborates: as actually being in the referenced McCarthy article. They are not (at least as that article is written-and-posted now), tho I assume that they are correctly attributable to AMc, somewhare, sometime.

Posted by: dgf at January 7, 2007 02:07 PM

Once again your logic eludes me, dgf.

Exactly how does quoting Media Matters' own mission statement amount to an ad hominem attack?

Or do you maintain that a site which self-describes as "progressive" should be taken as impartial? In any event, that is hardly an ad hominem. Lighten up.

Regarding the 3 paragraphs, my link just wasn't showing up because it was missing a character. It is, now.

Posted by: Cassandra at January 7, 2007 02:41 PM

Once again your logic eludes me, dgf.


I doubt that. You seem reasonably intelligent.

Posted by: dgf at January 7, 2007 03:09 PM

So, let me get this straight: The president outlined the circumstances which would be exigent.
And their problem with this that he told them?
What rights have been lost? You know what kind of an investigation would have to be done in order to make something like that happen?
After all the b*tching the press did about
how this administration was working secretively to destroy life as we know it (never mind the jihdists who have sworn to do God's work) they are howling because they know about it?

Nothing to see here. Move along.

Posted by: Cricket at January 7, 2007 03:56 PM

The constitution may protect against unreasonable searches, but the law passed by congress requires warrants.

Posted by: actus at January 7, 2007 09:07 PM

Hence the signing statement, actus. That *is* the purpose of a signing statement, after all.

The Constitution created three co-equal branches of government, and the executive branch is reminding Congress of that fact.

Posted by: Cassandra at January 7, 2007 09:22 PM

It's an interesting case.

The Congress passes a law, requiring warrants. The President signs it, with a note to the effect that he won't bother with warrants under certain circumstances. As Cassandra notes, the branches are co-equal, so neither the Congress' intent nor the President's is final.

So, what does the law mean, exactly? We don't know. One can argue that it means what Congress said, because Congress and not the President is empowered to make law; but one can also argue that the President has certain perogatives where national security is concerned, and Congress can't intrude upon them.

Once again, I suppose we'll wait on the courts to tell us what the law means. I hope that satisfies everyone, because it seems to be the best we can get.

Posted by: Grim at January 7, 2007 10:01 PM

"The Constitution created three co-equal branches of government, and the executive branch is reminding Congress of that fact."

The constitution says the president can sign laws, let them become law on their own, or veto them. Nothing about signing statements in there. Let me guess, you're also a scalia fan? Call your self a 'textualist'?

The constitution also says what the minimum that both branches must do: reasonable searches. But it is still possible to have a higher level of protection. Thats what the law says: warrants. no?

"Once again, I suppose we'll wait on the courts to tell us what the law means."

Certain members of the court consider themselves textualists. Scalia, Alito, for example. They say the law is what it says: what congress wrote. What the president accepted. Forget their 'intents.'

Posted by: actus at January 7, 2007 10:56 PM

The Constitution clearly sets a protection of the individual against "unreasonable search and seizure" of property and premises, and the person, no doubt (4th Amendment).
Legislatively and statuatorily, this typically means a warrant or court order; the court being functionally 'independent' of the executive or police power of any administrative area (city, state of even Federal Gov.) to insure that the "right" of the individual is not trammeled by executive power or caprice.
However, there is always "probable cause", which if proved (retroactively) by findings of an unwarranted search or strong belief in wrongdoing, or the possible flight of individuals or imminent destruction of evidence, that can allow or justify a search or seizure without warrant.
There is wide lattitude of search and seizure, at some levels of enforcement (such as sobriety checkpoints at the local level, etc.) and the Federal Gov. has always had lattitude with respect to foreign threats, espionage, etc.

The FISA statutes (which originally arose in the late '70's after evidence of abuse by the CIA of surveillance of US citizens) were mainly meant to protect US citizens from being targeted by higher levels of technological 'eveasdropping' that became available ~40 years ago, and have continued to evolve (the FBI though, continues to have the lattitude to do some of this without warrant, under probable cause). FISA was designed to create a mechanism for gathering admissable evidence, though; not to impede counter-espionage.

So the Executive still has lattitude to perform 'search and seizure' with regards to thwarting espionage, etc.
The Congress may limit this 'statuatorily', but it remains 'Constitutional'. I still believe the Consitution trumps most acts of Congress when there is conflict between the two, no?

Regardless of who occupies the White House, Democrat or Republican, we would be crazy to absolutely forbid this, in this age of 'asymetrical' warfare, where criminal organizations abroad actively plan to kill small and large numbers of American citizens here in the continental United States.
There is also the alternate levels accountability, with respect to intelligence gathering versus collection of evidence for a criminal prosecution (where FISA really means something).

Of course, that could all be a myth in the eyes of many Americans.

Posted by: Don Brouhaha at January 7, 2007 11:49 PM

I think a graphic demonstration of an actual ad hominem attack might clarify things: "dgf" is a douche bag.

Then again, maybe not. Nothing like disingenuousness...

Posted by: camojack at January 8, 2007 12:32 AM

LMAO @ Camojack!

You guys are great. :)

Posted by: FbL at January 8, 2007 03:22 AM

Camo --

LOL. Ah, Camo - your comments are almost always amusing, but wrong-headed merely often. I'm afraid you haven't quite captured the gist of the ad hominem.

While phrased with your typical elegance, your example is simply one of insult. An ad hominem, rather, seeks to avoid grappling with the merits/truth of an argument (etc) -- switching the focus to invite a rejection, rather, of its proponent. While such argumentation (most ?) often employs "insults" to reach its end, they are merely tools.

Posted by: dgf at January 8, 2007 03:26 AM

Argumentum ad hominem is literally "argument to the man". IOW, attacking the messenger instead of the message. I do not see how quoting a referenced source's mission statement can possibly qualify as such.

FWIW, I don't really think you're representative of any of Massengill's fine line of products, either; I was merely attempting to make a point...

Posted by: camojack at January 8, 2007 05:12 AM

Yes. For an example of this, see yesterday's discussion when I asked dgf which part of Fbl's comment was an ad hominem and he responded by completely ignoring both parts of my question and rebutting with a personal remark aimed at my intelligence.

I know I found it amusing.

Got irony? :p

Posted by: Cassandra at January 8, 2007 06:10 AM

Signing statements are far too much power for any one person to be trusted with. The office of the president is over-powered in many ways now - four or eight years is enough for someone to remake the country in their own image. And if an incompetent or an abuser of power gets in - which does happen from time to time - then they can do a lot of damage.

Posted by: Suricou Raven at January 8, 2007 06:21 AM

Yes camo, you should have said that dgf is a douche bag because of his suggested use of a highly biased website. FbL riposted elegantly, to the point of his statement and did not call him a douche bag.

As your Zen guide to snark, I must point out that you and I have much to learn, Weedhopper.

And dgf, what is in your bongwater? Progressive news tells me there is spin with not a whole lot in the way of truth, common sense or logic.

In one spittle flecked rant I read about Sean Hannity, he was slammed by a so called Christian for disagreeing with the Pope's anti war stand and getting his Christianity 'a la carte,' being smarter than God, etc.

Talk about getting one's knickers in a twist!

Posted by: Cricket at January 8, 2007 07:18 AM

Nah, I shouldn't have said it at all; after all, I'm capable of such subtlety as to be completely overlooked by most, and am usually underestimated as well. But I believe I've made my point.

Remember, them what laughs last...prob'ly didn't really get the JoKe.

Posted by: camojack at January 8, 2007 07:48 AM

I think everyone got the point, camo. Everyone around here knows that name calling is the one thing that will get you banned - it was pretty obviously done to make your point. That's why I didn't react to it.

And in any event you have never done anything even remotely like that before so there was no reason to think you meant it as an insult.

Posted by: Cassandra at January 8, 2007 07:54 AM

Help me out here, as I seem to be missing something. The question seems to be whether or not the president should be allowed to essentially pare down certain aspects of a bill that he/she feels may infringe on Executive authority, correct? And there are some that feel that's a bad thing, which I can understand.

But, what's the alternative? Doesn't the President also have veto authority? Couldn't he simply adopt a "my way or the highway" approach and return the entire package back to Congress, who would have no choice but to either remove the offending pieces/parts or gather the required 2/3s for an override of the veto, which in today's partisan environment is a very difficult thing indeed?

Posted by: Daveg at January 8, 2007 08:01 AM

"But, what's the alternative? Doesn't the President also have veto authority? Couldn't he simply adopt a "my way or the highway" approach and return the entire package back to Congress, who would have no choice but to either remove the offending pieces/parts or gather the required 2/3s for an override of the veto, which in today's partisan environment is a very difficult thing indeed?"

Thats what the constitution says he can do. People have invented this idea (see various comments above) that he gets to instead issue signing statements and therefore decide what the law means. But that doesn't seem to be in the constitution.

Posted by: actus at January 8, 2007 08:04 AM

Don:

I still believe the Constitution trumps most acts of Congress when there is conflict between the two, no?

The Constitution is the Supreme law of the land. All three branches of government take their authority from it. Actus is correct in saying that the C gives us certain rights, to which Congress may add.

However he neglects to say that the C also gives the three branches certain powers which other branches don't necessarily have the right to infringe upon and also that the "right" to be alive may supercede the "right" (specified nowhere in the C) not to have our mail opened in exigent circumstances.

And regarding extraConstutional powers, all three branches of government have arrogated unto themselves, at times, extraConstitutional powers that have over time come to be accepted. Executive orders and signing statements and judicial review are two examples of such.

Posted by: Cassandra at January 8, 2007 08:05 AM

Lots of things aren't in the Constitution.

Like judicial review, for instance.

Posted by: Cassandra at January 8, 2007 08:06 AM

And yes Dave, even the very partisan WaPo admits the President is using signing statements like a line item veto, which the Post (and many others) have endorsed granting to the White House (not Bush specifically).

Posted by: Cassandra at January 8, 2007 08:08 AM

...and Bush just asked Congress to grant him the line item veto... AGAIN.

Posted by: Cassandra at January 8, 2007 08:09 AM

"Like judicial review, for instance."

Oh. Just read Marbury v. Madison if you doubt that we have judicial review. Something about "all cases and controversies." And now you want to compare this to signing statements? Nah. Don't try it.

You don't have a constitutional right to have your mail only opened under a warrant. But here congress has decided to make a law that says that. The president can veto this, or accept this. The presidency has some powers which congress can't infringe upon. But these are not necessarily the same as 4th amendment exigent circumstances. This is the arrogation: the president is saying that the doctrine of exigent circumstances is an executive power. Its not really. There may be some things in there which are, like foreign relations, or commander in chief authority. But general police work? Legislatures govern police work all the time.

There is an argument for signing statements. They're decidedely un-textualist. They are about looking for intents that aren't in the text of the law -- something which upsets scalia, for example. You could even say they're about the executive being able to issue orders to their subordinates. But for this all to mean that they should be respected by courts equally to the intent of the 400 some members of congress? Weak. very weak.

Lastly, the constitution does spell out specifically that congress gets to set up the post offices. One would think that would include rules like this. Specially since it is such a specific grant of power.

Posted by: actus at January 8, 2007 08:21 AM

"...and Bush just asked Congress to grant him the line item veto... AGAIN."

Why do people keep asking for this? We've already realized its unconstitutional. It's in clinton v. city of New york.

Posted by: actus at January 8, 2007 08:24 AM

Marbury vs. Madison is SCOTUS granting itself the right of judicial review.

Just as the Executive branch granted itself the right to issue executive orders and signing statements.

And the president has not asked for the right to open mail for general police work. Gathering foreign intel is NOT general police work.

People keep asking for it because SCOTUS has reversed itself and some don't believe a line item veto is unconstitutional. They want it reviewed again. Often laws are ruled unconstitutional because they are deficient in some aspect - if more tightly written they could pass Constitutional muster.

Posted by: Cassandra at January 8, 2007 08:36 AM

Signing statements are far too much power for any one person to be trusted with. The office of the president is over-powered in many ways now - four or eight years is enough for someone to remake the country in their own image. And if an incompetent or an abuser of power gets in - which does happen from time to time - then they can do a lot of damage.

Posted by: Suricou Raven

As can an incompetent Congress, by passing bad law...except they are WITHOUT term limits. That's why there are three branches. That's why the President has veto power, and it's why we need a line item veto restored to the President, because Congress can attach garbage to otherwise GOOD legislation, and FORCE the President to veto the whole bill.

Posted by: JannyMae at January 8, 2007 09:35 AM

actus keeps talking about Scalia's desire for texualism in legislative review. His description of Scalia is accurate. I would suspect that when the time comes to review any law in which President Bush made a signing statement, Scalia will ignore it just as completely as he ignores legislative history.

Which is why, at the end of the day, I think this is all much ado about nothing. A presidential signing statement is in most cases meaningless, I believe.

At its very worst, a signing statement could be used as a fraudulent method to make a record of your "belief" about the meaning of the law in anticipation of some future charge of violating civil rights. (Law enforcement's good faith belief about the meaning of the law could be used to defeat a motion to exclude evidence allegedly wrongfully obtained, or even as a defense to an impeachment charge for knowingly violating the law.)

At best, it is the President's RIGHT to add to the record of the legislative history. Since most judges, Scalia excluded of course, rely heavily upon legislative history in interpreting statutes, Congress records plenty of material for judges to review. Legislation, however, has two components: passing Congress and Presidential signature (yes, legislations can also be made overriding a veto, but in such a case I assume there would be no "signing statement").

If Congress gets to say what its hundreds of different members "meant" (as if that were uniform) when it passed the legislation (and remember, many Courts are going to look at this stuff later), I think it is both fair and proper for the President to say what he thinks legislation means when he signs it.

Now, as for whether President Bush's statements are "accurate," that is really left for another day. It will only be decided by an actual case or controversy requiring a judical decision, if the Court decides it needs to decide the issue.

The executive has the Consitutional power and authority to execute and enforce the laws. That means a lot of non-obvious (to some) things. It means he has the power to not enforce laws he doesn't want to (e.g., he could quit prosecuting violations of certain laws on immigration and focus efforts on different issues of immigration). That is called prosecutorial discretion.

Plus, the executive can chose to really really enforce laws he likes (e.g., he could really crack down on immigration law if he wanted to). This a legitimate part of the seperation of powers. While Congress passes laws and budgets, the Executive alone gets to set the executive power's priorities.

None of this gives the President the power to "break" the law of course. But then we have to consider that the power to enforce the law and the power of the commander in chief has certain understood powers that Congress can't limit. I think it fair to say that it is at least arguable that Congress cannot limit the power of the President to deal with a suspected international threat or incident that requires quick and decisive action. That may mean that the President has the power, regardless of a generally applicable law, to search foreign mail without a warrant because of a real and immediate threat. This is part of being in charge of the armed forces I think -- certainly as obvious as the "case and controversy" requirement implies judicial review.

Again -- signing statments don't change the law. At most, they add to the legislative history to be weighed by a judge so inclined to even consider it. Since the statements publicize this President's view of the law, whether he be "legally" correct or not, they should be considered at least an enlightening moment for the public. Signing statements open the President up to the political consequences of what he signs and says, which is on balance a good thing.

Posted by: KJ at January 8, 2007 11:23 AM

Signing statements open the President up to the political consequences of what he signs and says, which is on balance a good thing.

And that was precisely my point. I think this is how we want the Executive to behave - in an open and above-board manner by announcing its intentions.

The "checks" on this are impeachment power (Congress) and the power of the courts (SCOTUS) in an instant case of judicial review.

Posted by: Cassandra at January 8, 2007 11:35 AM

KJ's is on his game this morning!
"Legislation, however, has two components: passing Congress and Presidential signature (yes, legislations can also be made overriding a veto, but in such a case I assume there would be no "signing statement")." Pretty funny point.

That and the fashion statement about thongs and plier handle colors, I mean, wow, he's hit two home runs today.

Posted by: Don Brouhaha at January 8, 2007 12:01 PM

The "checks" on this are impeachment power (Congress) and the power of the courts (SCOTUS) in an instant case of judicial review.

Impeachment? Hardly effective now due to party loyalty. Imagine the worst thing Bush might do to deserve impeachment... and I still doubt that more than two republicans would vote for it. It would be a party-line split, because almost no politician would vote to impeach a member of their own party, regardless of the crime.

It can only work when - as with Clinton - the president is *not* from the majority party in congress. And in that case it just goes the other way, as this time politicians would jump at any excuse to impeach an opposing president, regardless of how trivial the offense.

Posted by: Suricou Raven at January 8, 2007 01:13 PM

Impeachment isn't *supposed* to be easy. It's a drastic remedy. Even Rethugs or *gasp* Democrats, I think, would vote for impeachment if the President did something bad enough. They aren't all shameless partisans.

And regarding 'bad enough', just for context, Mr. Clinton was convicted of the offense he was impeached for in a regular court of law and disbarred. But Congress still failed to turn him out of office. Which should either be heartening or disheartening, depending on your point of view.

Posted by: Cassandra at January 8, 2007 01:19 PM

It really isn't relevant how easy impeachment is or is not. It is a, and in some cases the only, remedy for dealing with an executive or judge abusing power or acting illegally.

Being impeached isn't the end of the world, however. You can always become a big player in a Democratic congress. Ask Alcee Hastings. http://en.wikipedia.org/wiki/Alcee_Hastings

Also serving as a check is politics. For some reason, even lame ducks seem to care about polls.

Posted by: KJ at January 8, 2007 01:30 PM

Cassandra: "Once again your logic eludes me, dgf."

dgf: "I doubt that. You seem reasonably intelligent."

dfg, you prove the point Cassandra was obviously making--you aren't being logical.

Posted by: Jeff H at January 8, 2007 03:11 PM

"Marbury vs. Madison is SCOTUS granting itself the right of judicial review.

Just as the Executive branch granted itself the right to issue executive orders and signing statements."

Not really "just as." You have to be pretty relativistic to think those are the same. For one, marbury is older, and much more accepted, much more foundational. For two, marbury is quite strong, quite correct. Much more so than any argument for giving weight to signing statements.

"And the president has not asked for the right to open mail for general police work. Gathering foreign intel is NOT general police work."

He didn't ask for just intel purposes. He asked for 'exigent circumstances,' which is a 4th amendment doctrine regulating among other things general police work.

What sorts of things could possibly make the line item veto constitutional? we've added formalists and textualists to the court. They're not going to like it.

Posted by: actus at January 8, 2007 06:49 PM

And not to mention what the informalists and linguists will think and I shudder to consider what the casualists on the court will make of anything of the type.

Posted by: Pile On® at January 8, 2007 07:40 PM

For one, marbury is older, and much more accepted, much more foundational.

Bull. Marbury vs. Madison: 1803.

Presidents of the United States have issued executive orders since 1789.

The first signing statement was under James Monroe in 1822 - all within a 25 year period. So much for "much older". "Accepted" is a function of two things: the passage of time and politics.

And it requires no relativism whatsoever to be able to recognize a basic distinction. SCOTUS claimed for itself a power not explicitly named in the constitution. So has the Executive via Executive Orders and signing statements. There are differences b/c of the differences in the jobs of the two branches, but both have done so for nearly 200 years.

One wonders how much time will need to pass before the practice will become "accepted" and "foundational".

Posted by: Cassandra at January 8, 2007 07:55 PM

"Presidents of the United States have issued executive orders since 1789. "

Executive orders are not like signing statements. And use of signing statements as intent like congressional intent? Thats not even the same as the issuance of an executive order.

'"Accepted" is a function of two things: the passage of time and politics.'

And whether we actually are listening to them. I'd like to see where the courts rely on signing statements.

"SCOTUS claimed for itself a power not explicitly named in the constitution."

It says the courts can hear all cases, and all controversies. That's pretty clear. Have you read marbury? It makes a pretty clear case that judicial review is in there. Necessarily so. Failing to have it is 'an absurdity too gross to be insisted on.' Signing statements? not so.

'One wonders how much time will need to pass before the practice will become "accepted" and "foundational".'

well, for one, it would take signing statements becoming something people look at when determining whether something is the law or not. We do that with judicial opinions -- have since marbury and even before. We don't do that with signing statements.

Posted by: actus at January 8, 2007 08:12 PM

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