NY Post editorial misrepresented Bush signing statement on opening of mail

Summary: A New York Post editorial falsely claimed that a 1996 "law" "permits the opening of mail without a warrant" and that a recent signing statement from President Bush merely echoed "the executive branch's authority created from the earlier law." In fact, the "law" is a postal regulation that allows mail to be opened when it is suspected to be an "immediate danger to life or limb or ... property." Bush's signing statement claimed that executive-branch officials may open mail without a warrant "in exigent circumstances," without specifically defining them.

In a January 8 editorial, the New York Post falsely claimed that a 1996 "law" "permits the opening of mail without a warrant -- under certain dire circumstances" and that President Bush's signing statement on the recently passed postal reform bill merely echoed "the executive branch's authority created from the earlier law." "[D]ire circumstances," the editorial claimed, "include[], but [are] not limited to, reasonable suspicion that a piece of mail contains a bomb or other dangerous materials -- like anthrax spores." In fact, the 1996 "law" -- apparently a U.S. Postal Service regulation not passed by Congress -- is narrower and more specific than the Post suggested, limiting the government's power to open mail without a warrant to situations in which a government employee "reasonably suspect[s]" the piece of mail "of posing an immediate danger to life or limb or an immediate and substantial danger to property" -- and to open it "only to the extent necessary to determine and eliminate the danger."

As Media Matters for America noted, on January 4, the New York Daily News reported that on December 20, President Bush attached a "signing statement" to a postal reform bill that "quietly claimed sweeping new powers to open Americans' mail without a judge's warrant." According to the Daily News: "That claim is contrary to existing law and contradicted [by] the bill he had just signed, say experts who have reviewed it."

The Post, in its January 8 editorial, claimed that the controversy was "even less of a tempest in a tea pot than previous uproars over alleged civil-liberties abuses by the Bush administration." The paper argued that Bush, in his signing statement, was merely reiterating authority provided in the 1996 "law."

However, Congress did not pass a law in 1996 that authorized the opening of mail without a warrant. The Postal Service regulation to which the Post apparently referred, 39 CFR 233.11, does set out circumstances in which government officials can open mail without a warrant. The regulation, dated June 4, 1996, allows the chief postal inspector to authorize people to screen, but not open, mail if "there is a credible threat that certain mail may contain a bomb, explosives, or other material that would endanger life or property." The regulation allows government employees to open mail without a search warrant if it is "reasonably suspected of posing an immediate danger to life or limb or an immediate and substantial danger to property," "but only to the extent necessary to determine and eliminate the danger."

A separate regulation, 39 CFR 233.3, last updated August 16, 1996, contains a provision that explicitly prohibits postal employees ("except those employed for that purpose in dead-mail offices") from opening "sealed" mail without a federal search warrant "even though it may contain criminal or otherwise nonmailable matter, or furnish evidence of the commission of a crime, or the violation of a postal statute."

The latter regulation essentially echoed a statutory prohibition (39 U.S.C. 3623(d)) from 1970:

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.

George Washington University law professor Orin Kerr noted on the weblog The Volokh Conspiracy that the new statute to which Bush attached his signing statement explicitly repealed all of 39 U.S.C. 3623 and then enacted, as one of several "technical and conforming amendments," 3623(d)'s exact language as 39 U.S.C. 404(c).

The Post editorial, however, claimed that the 1996 regulation -- "law" -- granted an open-ended authorization for warrantless mail-opening "under certain dire circumstances. That includes, but is not limited to, reasonable suspicion that a piece of mail contains a bomb or other dangerous materials -- like anthrax spores." This, the editorial claimed, was simply "a reminder of the executive branch's authority created from the earlier law." [Emphasis in original.]

In fact, Bush's signing statement claimed more authority than set forward in the 1996 regulations. As noted above, those regulations prohibited the opening of sealed mail without a search warrant, unless that mail is "reasonably suspected of posing an immediate danger to life or limb or an immediate and substantial danger to property." By contrast, Bush, in his signing statement, claimed that executive-branch officials may open a piece of mail without a search warrant "in exigent circumstances." The statement gave two examples of "exigent circumstances": one apparently related to the 1996 postal regulation ("to protect human life and safety against hazardous materials") and the other related to foreign intelligence searches ("the need for physical searches specifically authorized by law for foreign intelligence collection"). However, the signing statement did not confine "exigent circumstances" to those two instances.

Even the first example -- "to protect human life and safety against hazardous materials" -- is broader than the 1996 regulation, which limited warrantless mail-opening to cases in which an "immediate danger" is reasonably suspected.

From the January 8 New York Post editorial titled "No News Is Good News":

Even folks who should know better raised concerns. Said Maine Republican Susan Collins (head of the Senate Homeland Security Committee until the Democratic takeover): "It is my hope that the administration will clarify its intent with this recent [signing] statement."

In truth, this so-called controversy is even less of a tempest in a tea pot than previous uproars over alleged civil-liberties abuses by the Bush administration.

The fact is, a separate law, signed by President Bill Clinton back in 1996, permits the opening of mail without a warrant -- under certain dire circumstances.

That includes, but is not limited to, reasonable suspicion that a piece of mail contains a bomb or other dangerous materials -- like anthrax spores. (The law was an effort to address threats such as the Unabomber's domestic-terrorism campaign.)

Bush's signing statement was a reminder of the executive branch's authority created from the earlier law.

—R.S.K.