Bush's Postal Signing Statement
For almost two years, House and Senate leaders were unable to secure passage of a postal bill that deals with governance and competition and pricing. Pretty dry and mundane stuff. But in early December, they scrapped the competing bills and introduced new legislation, which was immediately passed by both houses. This legislation contained language affirming the private nature of domestic mail; this language was not in either original bill.
On 20 December, President Bush signed the bill, HR6407, the Postal Accountability and Enhancement Act. But, in a companion signing statement, he explicitly overrode the section of the bill which dealt with who can open your mail.
The signed bill states:
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.
The intent of Congress seems to be to ensure that domestic mail remains a private communication. But in the signing statement, President Bush said he would ignore the law and "conduct searches in exigent circumstances."
What is an "exigent circumstance"? It's a legal term, and it means, in lay terms, "emergency." Interestingly, Attorney General Gonzales noted in 2005 that only in a rare circumstance could the government could open mail in "an emergency."
The Cato Institute reports that "Rep. Jeff Flake (R-AZ) specifically asked Attorney General Alberto Gonzales about mail openings at a 2005 hearing" and details the transcript of that exchange:
REP. FLAKE: ... But is that possible now, for the first time in history, without obtaining the approval of a court, to read a person’s mail and then prosecute the person on the basis of what is in that mail?
ATTY GEN. GONZALES: That sounds to me like it would be a search. And I think that you would need probable cause to do that. You would need a warrant to do that, and you’d have to go to a federal judge in those cases, except, I think, in very rare circumstances, if in the event of an emergency. But even then you’d have to go to a judge after the fact and explain what you’ve done. So I don’t think that what he has said is accurate.
I wonder: why would Bush explicitly include this in a signing statement, when the law already provides for warrantless searches of just about anything in "exigent circumstances." Plus, the White House has FISA. It's puzzling. The question is: is it also nefarious?
Powerline insists that the NYDN is making a mountain out of a molehill:
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."
Well, that's not what the 4th Amendment says: it prohibits "unreasonable" searches -- and requires "probable cause" (not "reasonable" cause):
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
So with that error in logic, I'll move to The Moderate Voice. Marc Schulman calls the act "surprising and disturbing."
More importantly, unlike the White House’s explanation of the NSA’s secret warrantless surveillance program (the story broken by the New York Times in December 2005), its applicability isn’t explicitly limited to the interception of international communications of people with known links to al-Qaeda and other terrorist organizations. It is a step too far.
And the Carpet Bagger Report writes: "The closer one looks at the signing statement, the worse it looks."
And that's my gut reaction, too. I keep asking myself - why include something in a signing statment that's already "clear" in law, unless you decide to redefine "exigent circumstances." Especially with this Adminstration's record: wrapping all sorts of civil liberties curtailments in the flag of fighting terrorism.
Side-By-Side Comparison: The Law and the Signing Statement
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