Has the Bush Administration Claimed New Power to Open Mail?:
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 Washington Post is typical:
Here's what I could figure out. The 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." This section doesn't do much: it simply moves 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 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 the emergency exception to FISA's rules requiring a warrant for physical searches, or might possibly — and here is where it gets interesting — refer to the AUMF.
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?
I don't know. 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." 50 U.S.C. 1827(a)(1).
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. 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 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.
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.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. But 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.
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.
Here's what I could figure out. The 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." This section doesn't do much: it simply moves 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 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 the emergency exception to FISA's rules requiring a warrant for physical searches, or might possibly — and here is where it gets interesting — refer to the AUMF.
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?
I don't know. 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." 50 U.S.C. 1827(a)(1).
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. 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 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.
Is this a new class of mail? It was always my (possibly mistaken) understanding that some letters/packages were inspected randomly- among other reasons for checking contents against what was claimed (especially for media mail, which is where I ran into some problems)
My only complaint is that, as a scholar of public sector labor relations, I think EVERYONE should be interested in hearing that the other parts of the law were about employment relations. Can't wait to read those sections, myself ...
I can't come up with a story where a law enforcement official would be aware of a particular piece of mail, with information sufficient to justify a warranted search, where it would be impractical to get the warrant before the mail left the scene. What would the exigent circumstance be?
The "nation of laws" concept is eviscerated if we cannot even tell what the law is in the first place.
I can;t find the link, but can you consider and respond to Powerline's take on this issue?
Or some combination of the two. Is there any reason to believe, based on the claims we've seen based on the AUMF, that this White House would *not* think it could open mail under the AUMF?
LB: the words "ticking bomb" will doubtless be invoked.
I couldn't find the link, either. Has Powerline posted on this?
http://powerlineblog.com/archives/016398.php
Shoot, W. is a *big* Mitford fan. He even reads them, whereas Rove just assigns them to aides who have to write him one-page summaries.
I rarely expect the guys at Powerline to discuss any "possibility" other than the one that supports the Bush admin/conservative ideology.
But I promise to keep an open mind.
On the topic of the AUMF, it's noteworthy that when Sen. Leahy asked AG Gonzales during last year's warrantless wiretapping hearings whether he believed the AUMF authorized the government to open first-class mail, Gonzales refused to answer.
Isn't Congress authorized (as long as it is operating within its enumerated powers, eg, to establish post offices) to impose its own statutory warrant requirements without necessarily incorporating Fourth Amendment exceptions? Doesn't this statute appear on its face to create a warrant requirement without an exigent circumstances exception? Wouldn't a Fourth-Amendment exigent-cricumstances exception narrow this statutory warrant requirement and expand executive powers? These questions are only semi-rhetorical -- I think the answers are "yes" in principle but I don't know whether there is case law to the contrary.
Perhaps an exigency exception is required by the Executive Power clause -- such that a statute purporting to eliminate the exception would be unconstitutional. But even if so, is there any reason to assume that the exigent-circumstances power is coextensive with the exigent circumstances exception? Shouldn't there be situations where warrants aren't required by the Fourth Amendment but may be required by Congress?
Off the top of my head I can't think of a reason that would not work.
The only reason that I don't think the second refers to the AUMF is the inclusion of the word "physical searches specifically" before "authorized by law." To my mind, that seems to rule out the AUMF. It would be quite the stretch to interpret the AUMF as "specifically" authorizing this type of "physical search[]."
I have heard others make the point you make and you may very well be right. (The "Courts will decide what the law is . . ." approch is a bit troubling, but that is another topic.)
Also, IIRC, this administration has issued far more signing statements than any previous administration. So I would submit that this administration is either much more concerned about providing helpful guidance to to the exec. branch than any previous administration -or- it is asserting that the president views congressional enactments (which he signs) as sort of guidelines that he can interpret to mean what he wants.
But I still don't think statutory warrant requirements necessarily incorporate Fourth Amendment exceptions. Take the border exception. Is the border exception incorporated into the postal statute, such that foreign mail can be routinely searched? I doubt it. See United States v. Chemaly, 741 F.2d 1346 (11th Cir. 1984) (finding that border exception did not apply to statutory warrant requirement).
All very nice, PatHMV. Your faith in the accessibility and usefulness of the courts, not to mention the timeliness with which they act, is touching. But don't we generally rely on the unwillingness of USPS employees to break what they understand to be the law to avoid having our mail opened. What happens when their boss tells them it's fine - the President said so? Will the employee go to court to find out the law, or just do as he is told?
In theory, I guess so. In practice, there's simply no reason to think that this statute was intended to do away with the traditional exceptions to the warrant requirement, such as the right to open a ticking package. Congressional enactments often leave gaps, after all.
In an orderly system, what would happen is that the President would issue a signing statement saying, more or less, "I'm going to tell the Executive Branch that they can still open ticking packages," and then if Congress has a problem with that, they can pass a new bill that explicitly says "no, you can't open anything without a warrant, even if it's ticking." In the real world, of course, Congress would never do such a thing, but the signing statement serves the purpose of keeping it all above-board. There needs to be a certain amount of give-and-take between branches if the system is going to work properly.
Agreed, but this White House is Mr. Fantastic when it comes to the AUMF.
The administration may also perceive some qualified immunity-type benefit from the statement.
But this begs the question. President Bush is saying "this isn't what I'm interpreting Congress as saying." Which is probably correct. It seems palpably absurd that Congress would demand a warrant if a magistrate wasn't readily available and a package was suspected of containing uranium or a time bomb. Even strict textualists allow for departures from the plain meaning to avoid absurd constructions of a statute.
I agree with you. See my second post. I think Michael Dorf put it well:
But we aren't really arguing about the ticking time bomb. The troublesome part is the purported "need for physical searches specifically authorized by law for foreign intelligence collection," which means whatever mail the President wants to open under his view of th AUMF.
The democratic congress should repeal that sucker.
Again, I'm not sure the AUMF "specifically" authorizes any warrantless physical searches (though FISA does).
Who uses the mail these days for sensitive shipments? It does not seem worth investigating what Bush meant with Congressional subpoena powers.
The signing statement provides another good argument for switching sensitive mail to private carriers.
I'm also skeptical that the last part of that paragraph in the signing statement invokes the AUMF as a rationale for warrantless search. Doing so ten days before a Dem congress takes power would be remarkably politically tone deaf, and the AUMF strikes me as a bit too general to pass the test of "specifically" "authorized by law." Such postal searches do exist, and they include Customs searches for prohibited monetary or tech transfers, those pesky exigent circumstances searches which are authorized under postal law and regulation, and the FISA searches (and activities like searches) authorized under foreign intel surveillance procedures. I don't think the general authorization language of the AUMF passes the laugh test compared to the specifically authorized searches that do exist. Is it possible that this is the purpose of the statement? Sure. It would be pretty exceptionally bad lawyering, however, IMNAAHO.
I think critics need to ask if they really want the statute enforced in the iron-clad locked down manner they are suggesting is appropriate. If the statute is to be taken at its face, all those other searches, except for a pre-meditated FISA search conducted once a warrant has been obtained are off limits. Good luck on getting that FISA warrant on the ticking package, BTW; it's a warrantless seizure to hold up the letter until you can manage to fill out the extensive FISA warrant paperwork, get a FISA judge to sign off on a warrant, etc. Better hope it's not a next-day delivery package.
If the package is ticking and white dust is wafting out and the chem/bio and radiological detector sirens are howling, should the postman really be compelled to deliver the package to the local federal judge/abortion clinic/animal products testing lab? And what kind of a risk should we submit the postal service to, in light of the contamination, illnesses and death to which they were exposed by the 2001 postal anthrax attack? Moreover, Congress usually provides "notwithstanding" language when they want a bill to be that absolute, as in "notwithstanding any other laws, no searches unless you have a warrant in your hands."
Yes, maybe it's possible that this was a claim of sweeping new powers, but it would be the dumbest possible political maneuver, give the Dems a big political gift before the media honeymoon effect wears off, and likely result in court losses if the policy was ever tested. Besides, it's a signing statement, and when have you ever known this administration to attempt to grab power by publicly announcing they were doing so first?
That's why I read it more as a statement that the Act would be interpreted to the extent possible as consistent with and giving effect to other previously existing law. Just doesn't make much sense, otherwise.
I'd feel more comfortable if the signing statement at least used the word "expressly." I don't feel a lot of confidence in what "specifically" means. It seems to me that if they meant FISA, they should have just said FISA, because vague lawyerisms don't really give a lot of direction to the Executive Branch, nor do they inform Congress of what the President's legal position actually is.
What makes you assume the President was signaling what it was going to do in the future through the signing statement? I would assume we are going to hear about opened (past tense) mail w/in the next three months. Actually, I give it 45 days.
Note that this phrasing does not promise that searches will be consistent with the law, but with "the need" for physical searches that are now authorized by the law. So even if the law requires a warrant for such a search, the government could make its determination based on its "need."
Yes, yes, you have won the War on Straw against all the nonexistent civil libertarians who want to do away with the exigent circumstances exception, so that a warrant will be required for a ticking package.
Yes, maybe it's possible that this was a claim of sweeping new powers, but it would be the dumbest possible political maneuver, give the Dems a big political gift before the media honeymoon effect wears off, and likely result in court losses if the policy was ever tested.
And that's exactly why you choose words that leave an ambiguity. On the other hand, if you're NOT claiming the power to do anything except what FISA allows, it would be trivial to cite FISA specifically. Even the word "expressly" would pretty much bar the door.
Is it slippery to claim that an implicit claim of authority under the AUMF counts as a "specific" authorization? Yeah, it would be, but given that the process is completely unreviewable, I hardly think it's beyond the limit of credulity to suggest that such a slippery wording might be involved.
This is really the problem with blogging at VC rather than orinkerr.com. There is s surfeit of commenters who are fundamentally wrong, often because they lack legal training, but they are smart enough that people want to refute them, which results in a discussion that utterly misses the point.
That's not to mention the out and out wingnut commenters.
Assuming that "someone" wasn't designated an enemy combatant and locked up Padilla-style for a few years.
As for getting a case about opening letters into court, first you've got to have evidence or an admission from the government that your letters were opened. You'll only get that admission if you are in fact a criminal that got caught by opening your letters. If you are merely a political opponent that an unscrupulous administration wants to spy upon, do you think you could prove that damaged envelopes and letters that never arrive weren't just the usual USPO incompetence? I see nothing in that signing statement that limits opening letters for foreign intelligence to foreign mail.
As for "exigent circumstances" like an apparent bomb or anthrax-filled envelope:
1) Don't Post Office regulations already cover these?
2) Regardless of regulations, I would expect the authorities to intercept these and handle them as safely as possible. I just want them to come into court later and have their actions reviewed. If you give them carte-blanc without any third-party review, you're opening all kinds of possibilities for abuse.
Look, Orin, if you cannot make your points well here, with the unwashed masses, you are not going to have much long term impact in the chambers of judges. That is the nature of the beast that is 4th amendment law. You do well here - much better than in your own blog.
If you want to have your own blog for tenure purposes, with only 4th amendment scholars allowed to comment, fine. But this is where the real law-changing action is, in the blog arena.
If you cannot arm the DA's, AG's, appointed counsel and PD's to wrestle with all the issues, including political points and "opinions in search of authorities," you are staying too far back in the cloister.
But the warrantless searches -not just of mail but of phone calls and emails as well - no doubt lead to the person being disappeared in the first place - which is exactly why the battle against such clandestine government activities has to be fought. Not for the sake of the enemy combatants, i could give a **** about them, but rather, for you and I. Political considerations have to be taken into account - as the Padilla example shows, with an eager Attorney General and executive branch announcing "we got one" and wildly over exaggerating the nature of the case (dirty bombs in major cities). Then they use such hyserics to justify why they need the power to do x,y,z. In reality, it was bs. Scary stuff.