A statement attached to postal legislation by President Bush last month may have opened the way for the government to open mail without a warrant.
The White House denies any change in policy, but civil libertarians are alarmed, saying the government has never publicly claimed that power before.
Federal law has long required a search warrant to open first class mail unless postal inspectors suspect it contains something dangerous, like a bomb or a hazardous chemical, reports NBC News' Pete Williams.
But in signing a postal bill just before Christmas, President Bush said federal law also gives the government authority to open the mail "for foreign intelligence collection."
White House spokesman Tony Snow said that's nothing new. “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.”
"What the signing statement indicates is what present law allows, in making it clear what the provisions are," Snow said Thursday in his daily briefing.
But members of Congress — Republicans and Democrats alike — say that's not what they intended the law to do. And they call it another example of a president claiming new legal authority while signing a bill into law.
“I was really surprised. There was absolutely nothing in the Postal Reform bill that in any way diminished or changed the privacy protections for domestic sealed mail,” Sen. Susan Collins of Maine said.
The law requires government agents to get warrants to open first-class letters.
But when Bush signed the Postal Reform act, he 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. ...”
“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.
Schumer critical of action
Sen. Charles E. Schumer, D-N.Y., also criticized Bush’s action.
“Every American wants foolproof protection against terrorism. But history has shown it can and should be done within the confines of the Constitution. This last-minute, irregular and unauthorized reinterpretation of a duly passed law is the exact type of maneuver that voters so resoundingly rejected in November,” Schumer said.
The ACLU’s Beeson noted that there has been an exception allowing postal inspectors to open items they believe might contain a bomb.
“His signing statement uses language that’s broader than that exception,” she said.
Bush uses the phrase “exigent circumstances”: “The question is what does that mean and why has he suddenly putting this in writing if this isn’t a change in policy,” Beeson said.
In addition to suspecting a bomb or getting a warrant, the law allows postal officials to open letters that can’t be delivered as addressed — but only to determine if they can find a correct address or a return address.
Bush has issued at least 750 signing statements during his presidency, more than all other presidents combined, according to the American Bar Association.
Reserving the right to make changes
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 added, “is harming the separation of powers.”
The president’s action was first reported by the New York Daily News.
The full signing statement said:
“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.”