ACLU Seeks Answers and Congressional Oversight on President Bush’s Snooping Authority

January 4, 2007 12:00 am

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Questions Raised Over Bush’s Power to Open Americans’ Mail Without a Warrant


NEW YORK - The American Civil Liberties Union today said that it plans to file a Freedom of Information Act request seeking information about President Bush’s statement that he is authorized to open people’s mail without a warrant in emergency conditions.

The ACLU is also calling on Congress to exercise its oversight function and to require the Postal Service to report to Congress annually and publicly the number of times each year it opens mail without a warrant.

“The President’s signing statement raises serious concerns that the Administration’s warrantless surveillance of telephone calls and Internet communications extends to the U.S. mail, as well,” said ACLU Executive Director Anthony D. Romero. “Given the President's dismal record of violating the privacy rights of Americans, we must question whether he is authorizing the opening of mail without a warrant in violation of the Constitution and laws enacted by Congress.”

“We call on Congress to demand that the administration provide reports so that it can monitor how this power is being used. Meanwhile, the ACLU will be seeking answers through the Freedom of Information Act,” said Romero.

The December 20 “signing statement” issued by President Bush leaves many questions unanswered, the ACLU said, including the number of times this power has been used, whether people who are searched are notified after the fact, and what policies are being put in place to conduct the searches. The ACLU expects to file a FOIA request asking these and other questions within the next few days.

The statement accompanied H.R. 6407, the Postal Accountability and Enhancement Act of 2006, which states, among other things, that First Class Mail cannot be opened without a warrant. Postal regulations have long prohibited the opening of First Class Mail without a warrant, according to the ACLU. In 1996, the postal regulations were altered to permit the opening of First Class Mail without a warrant in cases where the Postal Inspector believes there is a credible threat that the package contains dangerous material like bombs. In passing the new statute, Congress reiterated the express prohibition in existing law against opening First Class Mail without a warrant. The regulation authorizing an exception where there is a credible threat that a package may contain a bomb still exists, but is quite narrow.

Romero said the Bush signing statement does not specify whether there are special circumstances beyond those already established in the law that would allow him to open mail without a warrant and if so, what they may be. For example, the ACLU questioned whether the “exigent circumstances” would include the singling out of mail addressed to or from people on government watch lists, which are notoriously flawed. Such deliberate ambiguity, Romero said, “raises a red flag because of President Bush’s history of asserting broad powers to spy on Americans.”

Romero also noted that the signing statement was issued by President Bush during the Congressional recess and a year after revelations that his administration was claiming authority to secretly wiretap Americans without a warrant.

The ACLU is currently challenging the Bush administration’s illegal wiretapping program, which made international headlines when it was disclosed in December 2005. Last August, in a landmark ruling, a federal district judge in Detroit declared the program unconstitutional, saying “There are no hereditary Kings in America and no powers not created by the Constitution.” The Bush administration has appealed that ruling; a hearing before the Sixth Circuit Court of Appeals is scheduled for January 31. For more information on that case, ACLU v. NSA, go to

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