They've Got Mail -- It might be yours

01/13/2007

IS THE FEDERAL government opening citizens' mail without obtaining warrants? Was a statement that was quietly issued when the president signed an obscure Postal Service reform bill last month a new assertion of power by the administration to engage in such warrantless searches? The answer to both these questions is disturbingly unclear.

No reasonable person doubts that in emergency circumstances -- a ticking bomb inside a package -- government agents shouldn't have to wait for court approval to open private mail. That authority has been clear for years. In signing the Postal Accountability and Enhancement Act, President Bush took pains to note that he would interpret the law "in a manner consistent . . . 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."

That's not troubling if, as administration officials contend, the signing statement simply reinforces existing law. "There is nothing new here," said White House press secretary Tony Snow.

Okay, but what does present law allow? Does the administration contend, as in the case of its warrantless wiretaps, that the president has the inherent constitutional authority, or power granted by the post-Sept. 11 Authorization for the Use of Military Force (AUMF), to open mail without going through the process outlined in the Foreign Intelligence Surveillance Act? Administration officials have been less than eager to answer these questions.

At a hearing of the Senate Judiciary Committee last February, Sen. Patrick J. Leahy (D-Vt.), asked Attorney General Alberto R. Gonzales whether the administration believed that the AUMF also permitted the warrantless opening of mail:

Mr. Gonzales: "There is all kinds of wild speculation out there about what the president has authorized and what we're actually doing. And I'm not going to get into a discussion, Senator, about hypotheticals."

Mr. Leahy: "Mr. Attorney General, you're not answering my question . . . Does this law -- you're the chief law enforcement officer of the country. Does this law authorize the opening of first-class mail of U.S. citizens -- yes or no -- under your interpretation?"

Mr. Gonzales: "Senator, I think -- I think that, again, that is not what is going on here. We're only focused on communications -- international communications where one part of the communication is al-Qaeda. That's what this program is all about."

Mr. Leahy: "You haven't answered my question."

Given the president's signing statement, given his demonstrated willingness to stretch the boundaries of his authority and dispense with inconvenient legal niceties, it seems necessary to ask again.