ACLU and CNSS Seek Records on Warrantless Mail Surveillance

January 22, 2007 12:00 am

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President Bush’s Statements Leave Many Unanswered Questions, Groups Say

NEW YORK – The American Civil Liberties Union and the Center for National Security Studies today filed three Freedom of Information Act requests seeking the immediate release of records related to President Bush’s asserted authority to search Americans’ mail without a warrant. The president claimed this unprecedented authority in a “signing statement” attached to a statute that expressly prohibits opening First Class mail without a warrant.

The groups say there are major facts that need to be made public, including whether and how often this asserted power has been used, whether people whose mail is searched are notified after the fact, and what policies have been put in place to conduct the searches.

“No president has the authority to decide on his own what the law is,” said Anthony D. Romero, Executive Director of the ACLU. “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.”

The Freedom of Information Act (FOIA) requests were filed today with the United States Postal Service, 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 warrantless 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 warrantless searches; who is allowed to conduct these searches; any actual or potential violations of policies on warrantless searches; and all legal analysis on the constitutionality of warrantless searches.

The “signing statement” issued by President Bush accompanied H.R. 6407, the Postal Accountability and Enhancement Act of 2006. The Act reiterated the 30-year-old prohibition on opening First Class mail of domestic origin without a warrant. In 1996, the postal regulations were altered to permit the opening of First Class mail without a warrant in narrowly defined cases where the Postal Inspector believes there is a credible threat that the package contains dangerous material like bombs. 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 president appears to be relying on the same legal argument used to justify warrantless eavesdropping to claim a new and alarming power to read Americans’ mail without a court order,” said Brittany Benowitz, a CNSS staff attorney.

The groups say that the warrantless searches may violate existing law and regulations, as well as circumvent the judicial oversight required by the Foreign Intelligence Surveillance Act (FISA). Congress enacted FISA in response to revelations about widespread political surveillance by the FBI under the leadership of J. Edgar Hoover. Following those revelations, Congress convened hearings and established a commission to investigate the government’s abuses and explore how best to prevent future excesses. The hearings, chaired by Idaho Senator Frank Church, revealed that the FBI had operated a secret mail-opening program in which it submitted names of “domestic political radicals and black militants” to the CIA for inclusion in its own mail-opening “Watch List.”

The December 20 “signing statement” came just one year after the president revealed the existence of a secret National Security Agency domestic electronic surveillance program. Last August, in a landmark case brought by the ACLU, a federal district judge in Detroit declared the program unconstitutional. Last week, the Justice Department announced that the surveillance program will now be subject to review by the FISA court, but the ACLU expressed skepticism that the program complies with FISA and the Constitution. A hearing in the case is scheduled for January 31 before the Sixth Circuit Court of Appeals.

Today’s FOIA requests are online at:

For more information on ACLU v. NSA, go to

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