U.S. Can Open Mail Without Search Warrant

Michael Hayes
WASHINGTON — Although the White House denies any change in policy, a signing statement attached to postal legislation could allow the government to open first-class letters without a warrant, some experts said.

While the law requires government agents to obtain a warrant before searching first-class mail, Bush’s signing statement, attached to the Postal Accountability and Enhancement Act, indicates a possible change in policy, ACLU staff attorney Ann Beeson said.

“The signing statement raises serious questions whether he is authorizing opening of mail contrary to the Constitution and to laws enacted by Congress,” Beeson said. “What is the purpose of the signing statement if it isn't that?”

White House Press Secretary Tony Snow denied that the signing statement broke any new legal ground.

“All this is saying is that there are provisions at law for — in exigent circumstances — for such inspections,” Snow said. “It has been thus. This is not a change in law, this is not new.”

In the signing statement, Bush said his administration would construe the law’s key provision “in a manner consistent, to the maximum extent permissible, with the need to conduct searches in exigent circumstances.”

Postal Vice President Tom Day echoed the sentiments of Snow and the President, saying that it has been a long-standing practice to protect first-class mail in postal custody against unreasonable searches and seizures, but added that nothing had changed in terms of an individual’s right to privacy.

Sen. Charles Schumer, D-N.Y., said he disagreed with what he sees as a shift in the law.

“Every American wants foolproof protection against terrorism,” Schumer said. “But history has shown it can and should be done within the confines of the Constitution. This last-minute, irregular and unauthorized reinterpretation of a duly passed law is the exact type of maneuver that voters so resoundingly rejected in November,” Schumer said.

According to the American Bar Association, Bush has used 750 signing statements — more than all other presidents combined.

In practice, signing statements have been used to clarify law and instruct federal agencies on how to enforce new laws. But many critics of Bush have charged that his signing statements often reserve the right to revise, interpret or ignore laws for national security reasons.

ABA President Michael Greco said the practice harms the separation of powers doctrine in the U.S. because Congress is unable to respond to signing statements.

Criminal defense attorney Jeffrey Douglas told XBIZ the signing statement is part of a consistent assault on the 4th Amendment.

“The entire Bush administration wants to be able to act unilaterally without judicial review or Congressional oversight,” Douglas said.

While Douglas said he sees the signing statement as damaging to the nation as a whole, it has no tangible affect on adult entertainment specifically.

“There is no problem using the postal service,” he said. “The issue of obscenity prosecutions is not a matter of shipping. Producers and distributors should make their shipping choices based on economics, not legal concerns.”