Bush signing may allow mail searches

A signing statement attached to postal legislation by President Bush on Dec. 20 may have opened the way for the government to open mail without a warrant. The statement accompanied H.R. 6407, the Postal Accountability and Enhancement Act of 2006, which states, among other things, that first class mail cannot be opened without a warrant. Postal regulations have long prohibited the opening of first class mail without a warrant. In 1996, the postal regulations were altered to permit the opening of first class mail without a warrant in cases where the Postal Inspector believes there is a credible threat that the package contains dangerous material such as bombs. In passing the new statute, Congress reiterated the express prohibition in existing law against opening First Class Mail without a warrant. The regulation authorizing an exception where there is a credible threat that a package may contain a bomb still exists, but is quite narrow. But when he signed the postal reform act, Bush added a statement saying that his administration would construe that provision "in a manner consistent, to the maximum extent permissible, with the need to conduct searches in exigent circumstances." Questioning his claim were civil libertarians, veteran law enforcement agents and lawmakers, including Sen. Chuck Schumer (D-NY). He called it a "last-minute, irregular and unauthorized reinterpretation of a duly passed law." White House Press Secretary Tony Snow said there was nothing new in the signing statement. In his daily briefing Snow said: "All this is saying is that there are provisions at law for–in exigent circumstances–for such inspections. It has been thus. This is not a change in law, this is not new." A White House official, who was not authorized to speak on the record, said the signing statement was intended only to make clear that the new law would not limit the ability of the president or attorney general to open mail under emergency provisions of the 1978 Foreign Intelligence Surveillance Act, which governs spying in the United States. That law allows authorities to conduct searches and surveillance without warrants in emergency situations, although they must apply for a warrant later. But some civil liberties and national security law experts said the statement's language is unduly vague and appears to go beyond long-recognized limits on the ability of the government to open letters and other US mail without approval from a judge. Kate Martin, director of the Center for National Security Studies in Washington, acknowledged that it has long been legal for the government to open mail believed to contain a bomb or other imminent threat. But authorities are generally required to seek a warrant from a criminal or special intelligence court in other cases, Martin and other experts said. "The administration is playing games about warrants," Martin said. The American Civil Liberties Union's (ACLU) Ann Beeson also criticized the statement's broad language, particularly the president's use of the phrase "exigent circumstances." "The question is what does that mean and why has he suddenly put this in writing if this isn't a change in policy," she said. The ACLU said on Jan. 4 that it plans to file a Freedom of Information Act request seeking information about President Bush's statement. The ACLU is also calling on Congress to exercise its oversight function and to require the Postal Service to report to Congress annually and publicly the number of times each year it opens mail without a warrant. "The president's signing statement raises serious concerns that the administration's warrantless surveillance of telephone calls and internet communications extends to the US mail as well," said ACLU Executive Director Anthony D. Romero. "Given the President's dismal record of violating the privacy rights of Americans, we must question whether he is authorizing the opening of mail without a warrant in violation of the Constitution and laws enacted by Congress." Romero said the Bush signing statement does not specify whether there are special circumstances beyond those already established in the law that would allow him to open mail without a warrant and if so, what they may be. For example, the ACLU questioned whether the "exigent circumstances" would include the singling out of mail addressed to or from people on government watch lists, which are notoriously flawed. Such deliberate ambiguity, Romero said, "raises a red flag because of President Bush's history of asserting broad powers to spy on Americans." Sharp limits have been placed on the government's power to open mail since the 1970s, when a congressional committee investigating abuses found that, for three decades, the CIA and FBI had illegally opened hundreds of thousands of pieces of US mail. Among the targets were "large numbers of American dissidents, including those who challenged the condition of racial minorities and those who opposed the war in Vietnam," according to a report by a Senate panel, known as the Church committee. Also surveilled was "the mail of Senators, Congressmen, journalists, businessmen, and even a presidential candidate," the report said. Joining critics, the sponsor of the postal reform bill called on President Bush to explain why he used it to claim he can open domestic mail without a search warrant. Sen. Susan Collins (R-ME) questioned Bush's intentions behind the signing statement saying the bill itself "does nothing to alter the protections of privacy and civil liberties provided by the Constitution and other federal laws." "It is my hope that the administration will clarify its intent with this recent statement," she said. The former Senate Homeland Security Committee chairwoman added that she has long had concerns about Bush's broad use of signing statements that attempt to reinterpret laws passed by Congress. During his tenure, Bush has made plentiful use of signing statements, which are issued along with a president's signature on legislation. He has issued at least 750 signing statements during his presidency, more than all other presidents combined, according to the American Bar Association (ABA). Typically, presidents have used signing statements for such purposes as instructing executive agencies how to carry out new laws. Bush's statements often reserve the right to revise, interpret or disregard laws on national security and constitutional grounds. "That non-veto hamstrings Congress because Congress cannot respond to a signing statement," ABA President Michael Greco has said. The practice, he has added, "is harming the separation of powers."