President Bush now Claims Authority to Open Mail without a Warrant

•White House makes previously unarticulated declarations of power

•CNSS files FOIA requests

•Mail opening justified in same legal terms as warrantless eavesdropping

In his signing statement issued with the passage of the “Postal Accountability and Enhancement Act” on December 20, 2006, the President claimed broadly defined authority to open sealed U.S. mail without a warrant. Mr. Bush’s assertion contradicts the very law to which it is attached. The act itself allows for mail to be searched only if a warrant is first obtained (see section 1010(e)).

Mail that may be legally searched without a warrant is strictly limited to those articles which, after screening, are reasonably suspected to pose an immediate and substantial danger to life, limb or property. Only in these narrow circumstances is warrantless search allowed by law (Title 39, section 233.11).

According to the wording of the signing statement, President Bush now claims the authority to open mail under any circumstances “authorized by law for foreign intelligence collection.”

CNSS Files FOIA Requests

On January 22, the Center for National Security Studies together with the American Civil Liberties Union filed three Freedom of Information Act (FOIA) requests to ascertain whether the administration has utilized the power to conduct searches that it claims, and any statistics that might indicate how frequently it has done so. The two organizations also seek to know if people whose mail has been searched have afterwards been notified, and what policies might guide the conduct of the searches. For more information please listen to KPFA interview with Brittany Benowitz of CNSS discussing the FOIA requests.

The Strong Precedent of Protection against Warrantless Search

There is a strong tradition of constitutional and statutory safe-guards against warrantless searches of U.S. mail. As the Church Committee documented, however, as many as twelve illegal mail opening programs existed at various times between 1940 and 1973. While such programs were justified as tools for the collection of foreign intelligence or counter-intelligence information, they were frequently used to monitor the activities of American dissidents, one program going so far as to survey the mail of Senators, Congressmen, journalists, businessmen and a Presidential candidate. The Church Committee findings established an understanding between Congress, the Executive and the public that warrantless mail opening had come to an end. The President’s claim that he has the power to open mail without a warrant raises concerns that this understanding has been breeched, rekindling fears that American citizens are again being unjustifiably monitored.

Legal precedent that prohibits such programs is long-standing. The Supreme Court elaborated the protections against warrantless search of first-class mail as long ago as 1878 (in Ex Parte Jackson, 96 U.S. 727,733 (1878). In that case the Court declared that the secrecy of letters and sealed packages could not be violated except in accordance with the Fourth Amendment, which requires that searches be conducted with a warrant upon probable cause. As recently as 1970, the Court re-stated the restrictions on mail opening in United States v. Van Leeuwen, 397 U.S. 249,245 (1970): “It has long been held that first-class mail such as letters and sealed packages subject to letter postage—as distinguished from newspapers, magazines, pamphlets and other printed matter—is free from inspection by postal authorities, except in the manner provided by the Fourth Amendment.”

Moreover, First Amendment rights have long been used as a bulwark against illegal searches of mail. The Church Committee report quotes Justice Holmes as saying “[t]he use of mails is almost as much a part of free speech as the right to use our tongues.” Just as the threat of wire-taps would greatly inhibit oral communication by phone, so the threat of warrantless mail opening would inhibit written communication.

Statutes protecting first-class mail from search are also in place, and have remained largely unchanged since 1948. Above excerpts taken from The Church Committee report: Domestic CIA and FBI Mail Opening Programs, Pp. 561-565.

New Steps, Same Path

The December 20, 2006 signing statement puts the President at odds with the trust established by the Church Committee and the long-standing legal precedent against warrantless searches of mail. The administration continues to claim nonetheless that there is nothing novel about its actions. White House spokesman Tony Snow stated during a briefing that the signing statement “is not a change in the law” and that “[t]his is nothing new.”

Many think, however, that the White House is in uncharted territory. In an article entitled “W PUSHES ENVELOPE ON U.S. SPYING: New postal law lets Bush peek through your mail” (New York Daily News, January 4, 2007), Kate Martin of CNSS notes “[t]he [Bush] signing statement claims authority to open domestic mail without a warrant, and that would be new and quite alarming.” In the same article, Ms. Martin notes that Bush “is using the same legal reasoning to justify warrantless opening of domestic mail” as in the case of NSA eavesdropping.

The government laid out its views concerning NSA eavesdropping in a paper issued by the Department of Justice on January 19, 2006. The position detailed in that document has direct bearing on the issue of mail opening without a warrant. The administration claims that the President has the power of warrantless electronic surveillance because Congress gave him authority to use military force to prevent attack on the U.S. after September 11, 2001. The DOJ paper claims to validate “the President’s use of all traditional and accepted incidents of force in this current military conflict—including warrantless electronic surveillance to intercept enemy communications both at home and abroad.”

In other words, the spectrum of powers granted the President by the authorization to use military force is so broad that warrantless electronic surveillance is also permitted therein, so long as it is justified as part of the Executive’s effort to prevent an attack. Such a wide definition of power, which includes—but is not specifically limited to—warrantless eavesdropping, could presumably be used to justify the opening of sealed mail without a warrant as well. (See the DOJ paper “Legal Authorities Supporting the Activities of the National Security Agency Described by the President”, Summary, from 1/19/2006).

The administration’s logic, however, ignores the limitations set out by the Foreign Intelligence Surveillance Act, or FISA, which dates back to 1978. Under FISA, warrants are always required, except during a 15-day period following a declaration of war. (For more information on FISA, see that portion of the CNSS website).

Attorney General Refuses to Answer Senator Leahy’s Questions on Mail-Opening

Although the DOJ paper lays out a framework which could be used to justify warrantless mail searches—and which allows the government to ignore FISA—Attorney General Gonzales will not speak clearly about the matter. During hearings regarding warrantless eavesdropping, Senator Patrick Leahy attempted to obtain explications from the Attorney General on the matter of mail opening. On February 6 of 2006 he asked Mr. Gonzales whether the administration had the power to open U.S. mail. The Attorney General refused to elaborate the administration’s views on the subject. Although Mr. Gonzales would not speak to the matter before Senator Leahy and the Judiciary Committee, the DOJ document specifically relevant to warrantless surveillance and mail opening, mentioned above, had been published more than two weeks prior. That paper suggests that the theoretical foundations of a warrantless mail opening program had already been laid, and even mentions specific instances of such practices in American history, reaching back to the Revolutionary War and George Washington for precedent (before the provisions of the Fourth Amendment had been ratified). (DOJ paper “Legal Authorities Supporting the Activities of the National Security Agency Described by the President”, Summary, from 1/19/2006).

On January 18^th of 2007 Senator Leahy again tried to draw an answer from Attorney General Gonzales on the subject of warrantless mail opening. However, Mr. Gonzales continued to demure. When asked directly by Senator Leahy whether “the [P]resident has authority under AUMF [Authorization for Use of Military Force] notwithstanding the requirements of the FISA statute”, Gonzales again refused to answer. He said only “Senator, I am not prepared to answer that question.” When asked whether the President has “the inherent constitutional authority to open American’s mail without a warrant”, Gonzales again claimed to be unprepared, stating that the DOJ had not conducted such an analysis. However, the DOJ paper issued on January 19^th of 2006 attempts, by citing Authorization for Use of Military Force, to justify a broad array of surveillance methods.

Last updated March 6, 2007