By Dan Eggen
Washington Post Staff Writer
Friday, January 5, 2007
President Bush signed a little-noticed statement last month asserting the authority to open U.S. mail without judicial warrants in emergencies or foreign intelligence cases, prompting warnings yesterday from Democrats and privacy advocates that the administration is attempting to circumvent legal restrictions on its powers.
A "signing statement" attached to a postal reform bill on Dec. 20 says the Bush administration "shall construe" a section of that law to allow the opening of sealed mail to protect life, guard against hazardous materials or conduct "physical searches specifically authorized by law for foreign intelligence collection."
White House and U.S. Postal Service officials said the statement was not intended to expand the powers of the executive branch but merely to clarify existing ones for extreme cases.
"This is not a change in law, this is not new, it is not . . . a sweeping new power by the president," spokesman Tony Snow told reporters. "It is, in fact, merely a statement of present law and present authorities granted to the president of the United States."
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 U.S. mail without approval from a judge.
Kate Martin, director of the Center for National Security Studies in Washington, said the government has long been able to legally 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. "If they are not claiming new powers, then why did they need to issue a signing statement?"
Administration critics said they were particularly confused because the relevant portion of the postal reform legislation -- which prohibits opening mail without warrants in most circumstances -- remains unchanged.
A White House official, who was not authorized to speak on the record, said the signing statement, first revealed by the New York Daily News, 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.
"The point was that because Congress was passing this anew, the concern was that there would be some confusion," the official said. "The law that's been around since 1978 still allows you to conduct warrantless physical searches under some circumstances, and nothing changes that authority."
The debate over the signing statement comes after disclosures over the past year that Bush authorized a program that allows the National Security Agency to monitor telephone and e-mail communications between the United States and other countrieswithout court oversight. The administration has strongly defended the legality of the NSA spying program, arguing that Congress authorized it as part of the war on al-Qaeda and, even if it had not, that the president has the power to order such surveillance.
In addition to searching for a bomb or other hazardous device, postal officials are legally allowed to open letters that cannot be delivered as addressed, but only to find a correct destination for the parcel. The FBI and other law enforcement agencies are also allowed to obtain authority from postal inspectors to track mail without opening it.
The latest statement caused a small ruckus on Capitol Hill yesterday just as Democrats were taking control of Congress. Charles E. Schumer (D-N.Y.), a member of the Senate Judiciary Committee, called the statement a "last-minute, irregular and unauthorized reinterpretation of a duly passed law."
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 U.S. 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 the 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.
During his tenure, Bush has made plentiful use of signing statements, which are issued along with a president's signature on legislation. Although previous presidents used them as guidance for the executive branch, Bush has offered revised interpretations of laws on constitutional or national security grounds in some of his statements.