In a move that experts say contradicted the postal reform bill he had just signed into law, President Bush quietly issued a "signing statement" two weeks ago that claimed he has the right to open Americans' first-class US mail without a judge's warrant. The New York Daily News reports that the signing statement was issued on Dec. 20 after the president signed the Postal Accountability and Enhancement Act, an act which dealt with mostly 'mundane reform measures' but which also strongly reinforced protections against opening mail without a warrant.
The Daily News says those who have seen the signing statement say it seems to take executive authority far beyond even the limits the Bush administration has pursued in the past few years, and in ways such that the new powers could be easily abused.
"The [Bush] signing statement claims authority to open domestic mail without a warrant, and that would be new and quite alarming," said Kate Martin, director of the Center for National Security Studies in Washington.
"The danger is they're reading Americans' mail," she said.
"You have to be concerned," agreed a career senior US official who reviewed the legal underpinnings of Bush's claim. "It takes Executive Branch authority beyond anything we've ever known."
Dan Froomkin notes in his Washington Post "White House Briefing" blog that even though the Daily News was two weeks late on the story, it still has a scoop because Mr. Bush's signing statements "have been widely ignored by the traditional media." The one exception was the piece by Charles Savage of the Boston Globe that showed that as of April last year, Bush had issued 750 signing statements that said he had the authority to disobey laws enacted by Congress (and signed into law by him) if he thought it was appropriate.
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In another article Mr. Froomkin wrote for the Nieman Watchdog site, which is produced by the Nieman Foundation at Harvard University, Froomkin said that Bush's repeated use of signing statements raises important constitutional questions. He points to an article by Phillip Cooper, a Portland State University public administration professor, which shows how the Bush administration has sought to expand executive powers.
The administration's default position has been, when in doubt challenge legislative provisions whether there is a serious issue or not. As has been true of other uses and abuses of presidential direct action in recent administrations, the dangers here are several, one of the most important of which is to further damage the long-standing informal working relationships that permit the White House and Congress to get essential work done even in the midst of partisan and ideological differences.... This problem is exacerbated by the tendency not only to claim authority but to assert that the power is solely and exclusively vested in the president. Related to that problem is the tendency not only to reinterpret language in legislation but to reject outright what are mandatory provisions of bills. The tendency, to the point of creation of a standard practice, during the Bush first term to reject mandatory provisions of legislation and convert them into advisory provisions or to treat them as precatory is nothing less than a post-congressional amendment process without benefit of either bicameralism or presentment.
Jurist reports that the Bush administration defended the signing statement, "dismissing arguments" that the statement changes administration policy on when mail can be opened without a warrant. The Associated Press reports that White House Press Secretary Tony Snow also defended the president's actions.
In his daily briefing Snow said: "All this is saying is that there are provisions at law for - in exigent circumstances - for such inspections. It has been thus. This is not a change in law, this is not new."
Postal Vice President Tom Day added: "As has been the long-standing practice, first-class mail is protected from unreasonable search and seizure when in postal custody. Nothing in the Postal Accountability and Enhancement Act changes this protection. The president is not exerting any new authority."
The American Civil Liberties Union issued a press release Thursday saying it would 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."
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