The American Civil Liberties Union and the Center for National Security Studies filed three Freedom of Information Act requests on Jan. 22 seeking the immediate release of records related to President Bush’s authority to search Americans’ mail without a warrant.
The president claimed this authority in a Dec. 20 signing statement that accompanied H.R. 6407, the Postal Accountability and Enhancement Act of 2006.
“No president has the authority to decide on his own what the law is,” Anthony D. Romero, executive director of the ACLU, said in a statement. “From Pentagon and FBI surveillance of peace activists to unchecked NSA wiretapping, the executive branch is trampling on the privacy and free speech rights of Americans.
“The public needs to know if the president is undermining the democratic process by abusing his power and violating the Constitution,” he said.
According to the ACLU, the CNSS, and other groups, H.R. 6407 does not change the current protections, which under the Foreign Intelligence Surveillance Act of 1978 and federal criminal rules require prior judicial approval before domestic sealed mail can be searched.
Under limited circumstances when there is an immediate danger to life or limb or an immediate and substantial danger to property, postal inspectors can search a sealed package or envelope.
This occurs, for example, when wires protruding from a package, odors escaping from an envelope, or stains on the outside of a package indicates the contents may constitute such a danger.
The ACLU and CNSS said that instead of referencing the narrow exception in the postal regulations, the president’s signing statement suggests that he is assuming broader authority to open mail without a warrant.
“[The] postal reform bill, which was recently signed into law, represents the most sweeping reforms to the [USPS] in decades, but does absolutely nothing to alter the protections of privacy and civil liberties provided by the Constitution and other federal laws,” said Senator Susan Collin (R-ME) in a statement released Jan. 4. “The circumstances and procedures under which the government may search sealed mail are well-defined.
“I have long had concerns about the president’s broad use of signing statements to raise questions about the executive’s intention to comply with legislation approved by Congress and signed into law by the president,” she said. “And it is my hope that the administration will clarify its intent with this recent statement.”
The U.S. Postal Service also issued a statement Jan. 4 regarding the signing statement.
“As has been the longstanding practice, First Class mail is protected from unreasonable search and seizure when in postal custody,” Thomas Day, senior vice president of government relations, said in the statement. “Nothing in the Postal Accountability and Enhancement Act changes this protection. The president is not exerting any new authority.”
The Freedom of Information Act requests were filed with the USPS, the Department of Justice and the Office of the Director of National Intelligence.
The requests seek any rules, regulations, policies, procedures, practices or guidance from 2001 to the present concerning warrant-less searches of mail originating from within the United States.
The ACLU and CNSS are specifically seeking statistical data and any information on whether the government has authorized warrant-less searches; who is allowed to conduct these searches; any actual or potential violations of policies on warrant-less searches; and all legal analysis on the constitutionality of warrant-less searches.
The ACLU and CNSS also said that the warrant-less searches may violate existing law and regulations, as well as circumvent the judicial oversight as required by law.