Posted by Orin Kerr:
Has the Bush Administration Claimed New Power to Open Mail?:
http://volokh.com/archives/archive_2007_01_07-2007_01_13.shtml#1168059372
In the last few days, there has been a lot of press on the Bush
Administration's claims that the government can open postal mail
without a warrant in some cases. Last Friday's story in the
[1]Washington Post is typical:
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.
So there are two accounts of what is happening. In the first
account, the Bush Administration is unilaterally asserting new powers
to open mail; in the second, the Administration is simply restating
long-settled law. The obvious question is, which account is correct?
My own answer is that I'm not sure yet. There may be nothing here, but
there's a possibility that there is something important.
Here's what I could figure out. The [2]Postal Accountability and
Enhancement Act was passed in late December, and mostly regulates the
internal operations of the U.S. Postal Service. It's really dry stuff
about employment law, perhaps interesting if you work at the Postal
Service (or you're an employment lawyer) but not otherwise.
The relevant section of the Act is Section 1010(e), which comes at
the very end of the act in a section about "technical and conforming
amendments." The purpose of the section appears to be to move a
paragraph of statutory text from one place in the U.S. Code to
another. Specifically, the section takes a paragraph from 39 U.S.C.
3623(d) -- a paragraph that has been there since the 1970s -- and
moves it to 39 U.S.C. 404(c). Here is the paragraph that has been
moved from one section to another:
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.
Okay, so that brings us to [3]the President's signing statement. The
signing statement for this Act has the following to say about the
technical amendment in Section 1010(e):
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.
So what does this signing statement mean? First, it pretty clearly
says that the Administration reads the moved paragraph as having
implicit exceptions that track the Fourth Amendment's exceptions to
the warrant requirement. The Fourth Amendment has long required a
search warrant to open postal mail, subject to the usual Fourth
Amendment exceptions such as exigent circumstances. The signing
statement appears to say that the Administration construes that law as
implicitly incorporating the Fourth Amendment's warrant exceptions. In
other words, the law isn't intended to require federal officials to
obtain a warrant when exigent circumstances or other exceptions exist.
The second possible meaning of the signing statement is that the
Executive may construe other statutory laws as authorizing warrantless
searches, and that in those cases the other laws trump. "Physical
searches specifically authorized by law for foreign intelligence
collection" could refer to searches authorized under [4]the emergency
exception to FISA's rules requireing a warrant for physical searches,
or might possibly -- and here is where it gets interesting -- refer to
the AUMF.
The question is, is this something new? Is this construction of the
statute the same construction the executive has always taken, or does
it reflect a change in policy? In other words, does the issuance of
the signing statement for this technical amendment simply signal the
Bush Administration's unusual overreliance on signing statements -- so
much that they would make a statement to restate existing law even
when the paragraph is just moved from one place to another -- or does
it hint at a previously unknown Administration's practice?
Here I am unsure. My guess is that the signing statement doesn't
signal a major reinterpretation of the statute as against Fourth
Amendment exceptions. Here, my thoughts are very tentative: I spent
about a half hour looking for cases that would answer whether the
postal statute block searches in exigent circumstances or when another
exception to the warrant requirement applies, and came up mostly
empty. Somewhat to my surprise, I could only find a handful of
suggestions and snippets on this, none of which was certain. (The
reason for the lack of cases may be that exigent circumstances may
require the seizure of mail, but won't often require its search. I'm
not sure.) On the whole, though, this led me to think that the statute
has in the past been understood to be more about internal postal
service procedures rather than investigations, so it would make sense
for the statute to not trump the usual Fourth Amendment doctrines
allowing warrantless exigent circumstances searches.
But what if the signing statement isn't really about recognizing
constitutional exceptions, but rather the Bush Administration's
reading of the AUMF? Recall our many discussions about the legality of
the NSA domestic surveillance program. FISA's prohibition on physical
searches for national security reasons has the same prohibition as
FISA's prohibition on wiretapping: it also prohibits searches "except
as authorized by statute." [5]50 U.S.C. 1827(a)(1).
[6]DOJ's defense of the NSA surveillance program argues that the
AUMF is clear statutory authorization to use fundamental tools of war
to fight terrorism, and that "[e]lectronic surveillance is a
fundamental tool of war that must be included in any natural reading
of the AUMF�s authorization to use 'all necessary and appropriate
force.'" Thus, in the Administration's view, the AUMF is statutory
authorization to conduct electronic surveillance. If electronic
surveillance is a fundamental tool of war, then presumably postal
surveillance is a fundamental tool of war, as well. At the very least,
I can't think of a reason why you would think the AUMF allows national
security wiretapping but not national security letter-opening. If you
can intercept John's e-mail to Jane for national security reasons,
presumably you can also intercept John's snail mail to Jane, too.
So where does that bring us? Not to any certainty, unfortunately. It
may be that this signing statement is nothing, and it just reveals the
Administration's willingness to issue signing statements about
everything. On the other hand, it may be that it hints at a program
allowing the government to open postal mail under the claimed
authority of the AUMF.
References
1.
http://www.washingtonpost.com/wp-dyn/content/article/2007/01/04/AR2007010401702.html
2.
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=109_cong_bills&docid=f:h6407enr.txt.pdf
3. http://www.whitehouse.gov/news/releases/2006/12/20061220-6.html
4.
http://www.law.cornell.edu/uscode/uscode50/usc_sec_50_00001824----000-.html
5.
http://www.law.cornell.edu/uscode/uscode50/usc_sec_50_00001827----000-.html
6. http://news.findlaw.com/hdocs/docs/nsa/dojnsa11906wp.pdf
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