The cover of today’s New York Daily News features a grinning President Bush and the headline: “I’ve got mail! And it’s yours!”
The story by James Gordon Meek, touted as a “Daily News exclusive,” is titled “W pushes envelope on U.S. spying”. It begins:
President Bush has quietly claimed sweeping new powers to open Americans’ mail without a judge’s warrant, the Daily News has learned.
The President asserted his new authority when he signed a postal reform bill into law on Dec. 20. Bush then issued a “signing statement” that declared his right to open people’s mail under emergency conditions.
That claim is contrary to existing law and contradicted the bill he had just signed, say experts who have reviewed it.
The gist of the paper’s coverage is that President Bush has claimed some unprecedented power to open anyone’s mail:
Experts said the new powers could be easily abused and used to vacuum up large amounts of mail.
“The [Bush] signing statement claims authority to open domestic mail without a warrant, and that would be new and quite alarming,” said Kate Martin, director of the Center for National Security Studies in Washington.
What lies behind the Daily News’ “scoop” is the Postal Accountability and Enhancement Act, which Congress enacted late last year. For the most part, it deals with routine matters relating to the postal service. But Section 1010(e) of the Act included this paragraph; there was nothing like it in the previous version of the statute [see Update]:
(c) The Postal Service shall maintain one or more classes of mail for the transmission of letters sealed against inspection. The rate for each such class shall be uniform throughout the United States, its territories, and possessions. One such class shall provide for the most expeditious handling and transportation afforded mail matter by the Postal Service. No letter of such a class of domestic origin shall be opened except under authority of a search warrant authorized by law, or by an officer or employee of the Postal Service for the sole purpose of determining an address at which the letter can be delivered, or pursuant to the authorization of the addressee.
President Bush signed the Postal Accountability and Enhancement Act last month; as he often does, he released a signing statement that described how the executive branch would construe several sections of the act. The signing statement included this paragraph:
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.
This is what the Daily News describes as an assertion of sweeping new powers to open Americans’ mail. In fact, though, I think the paper has the story exactly backward. Under pre-existing law, a search warrant was normally required to open first class mail (but not other forms of mail). However, many exceptions to the requirement of a search warrant have been recognized. The Fourth Amendment does not require a warrant in all cases; it requires that all searches be “reasonable.”
One broad category of exception to the requirement of a warrant is “exigent circumstances.” Generally speaking, if there are exigent circumstances (e.g., a danger that evidence is about to be destroyed), a warrant is not required. Thus, to construe the act as permitting warrantless searches in cases of exigent circumstances such as the possible presence of hazardous materials, means that in this regard, the act did not make any change in pre-existing law.
Likewise with the President’s second qualification. Under the Foreign Intelligence Surveillance Act, warrantless physical searches are authorized in some circumstances. Thus, the President’s signing statement means that he does not construe the Postal Accountability and Enhancement Act as changing these provisions of FISA.
So what President Bush is saying is that he understands that law enforcement authorities have exactly the same power to open first class mail that the had prior to the enactment of the Postal Accountability and Enhancement Act, at least with respect to exigent circumstances and FISA-authorized searches.
The interesting question is whether Congress really did intend to limit the power of law enforcement agencies to open mail under these circumstances. This comment by Henry Waxman, quoted by the Daily News, suggests that it may have:
“Despite the President’s statement that he may be able to circumvent a basic privacy protection, the new postal law continues to prohibit the government from snooping into people’s mail without a warrant,” said Rep. Henry Waxman (D-Calif.), the incoming House Government Reform Committee chairman, who co-sponsored the bill.
Note the contradiction in Waxman’s statement: he says that the new law “continues” to prohibit warrantless examination of mail, but in fact, there was no such provision in the prior version of Section 404 of the statute, and the new language in Section 404 does not accurately state the law as it existed prior to the statute’s enactment.
Is Waxman really saying that the intent of Congress is that mail can never be opened without a warrant, even, for example, if there is good reason to think it contains anthrax? If so, there is an interesting story here. But it is exactly the opposite of the “scoop” claimed by the Daily News: If President Bush is wrong, and the 2006 statute did effect a change in pre-existing law, then Congress cut back on the ability of law enforcement agencies to protect the public in circumstances of extreme danger.
All of this may have little practical significance. “Exigent circumstances” presumably will arise rarely in the context of a piece of first class mail, and it is hard to see how the circumstances under which FISA authorizes warrantless physical searches could ever apply. So whether President Bush has construed Congress’ intent rightly or wrongly may be of little consequence. In any event, however, the Daily News got the story backwards when it claimed that Bush’s construction of the law somehow represents an assertion of new executive powers.
UPDATE: There were a couple of questions about this in Tony Snow’s press briefing today. Snow said:
This is not a change in the law. This is not new. It is not as was described in one paper a “sweeping new power” by the President. It is, in fact, merely a statement of present law and present authorities granted to the President of the United States.
No one asked the more interesting question, i.e., whether Congress intended to cut back the powers of law enforcement agencies, and if so, whether the President shouldn’t have vetoed the bill rather than interpreting it in a signing statement.
UPDATE: A poster at the Forum points out that there was indeed a provision identical to the new Section 404(c) in the postal statute, at Section 3623. The 2006 revisions merely moved the provision to a new location–a fact that, curiously, is not noted in any of the news coverage I’ve seen.
This puts a little different twist on the story, but doesn’t change the fundamental issues. From a legal standpoint, there are two questions. First, does Congress have the power to prohibit opening mail without a warrant even in “exigent circumstances” that would permit a warrantless search in any other circumstances (e.g., of a home or a person); and second, should the statute be interpreted as having intended that sweeping result.
I would think the answer to the first question would be Yes. Congress controls the postal service, and I don’t see any reason why it can’t permit searches even when those searches would be constitutionally permissible. As to the second question, the language of the statute seems unequivocal. I haven’t had time for exhaustive research, but it doesn’t appear that the issue of whether there is an “exigent circumstances” exception has ever been presented to the courts. In United States v. Phillips, (5th Cir. 1973), the court held that a warrantless opening of first class mail was improper. In footnote 7, however, the court wrote:
It is not claimed, and indeed it cannot be claimed, that there were exigent circumstances that would have prevented the government’s obtaining a warrant before the parcel was delivered.
While dictum, this suggests that the court considered the possibility of an “exigent circumstances” exception to be a reasonable one.
In short, the Bush administration has offered a reasonable interpretation of Section 404(c) in its signing statement. The signing statement merely says that Section 404(c) will be applied “in a manner consistent, to the maximum extent permissible, with the need to conduct searches in exigent circumstances.” What that “maximum extent permissible” may be will have to be determined on a case by case basis.
The really significant point, it seems to me, is the one I made in the original post: the requirement of a warrant is generally subject to an “exigent circumstances” exception. Given “exigent circumstances,” which is a term of art, law enforcement authorities can search your house, your car, or your person without a warrant. If the Postal Service Act means what Chuck Schumer and Henry Waxman says it does, then your mail is subject to a higher standard of protection against warrantless search than your underwear. They ought to be prepared to explain why this should be so, and why the Bush administration’s view that under circumstances which, to be sure, would arise rarely if ever, warrantless search ought not be permitted “to protect human life and safety against hazardous materials.” It strikes me that they, and not President Bush, are the ones taking a radical position on this issue.
The bottom line is that the Bush administration’s signing statement, which merely says that the law relating to opening of mail should be construed consistent with the general constitutional law under the Fourth Amendment “to the maximum extent permissible,” should hardly be a cause for hysteria.
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