Dear Mr. President:
I am deeply concerned about the signing statement that you issued on December 20, 2006, regarding H.R. 6407, the Postal Accountability and Enhancement Act. It raises serious questions about whether the government is reading Americans’ first class mail without obtaining a search warrant or other court order as required by statute.
The Postal Accountability and Enhancement Act recodified in a different location an existing provision of federal law, without change, that states as follows:
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.
In your signing statement, you stated that the executive branch would construe this provision
“in a manner consistent, to the maximum extent permissible, with the need to conduct searches in exigent circumstances, such as to protect human life and safety against hazardous materials, and the need for physical searches specifically authorized by law for foreign intelligence collection.”
At a Senate Judiciary Committee hearing in February 2006 on the National Security Agency warrantless wiretapping program, Senator Leahy asked Attorney General Alberto Gonzales whether the executive branch was relying in other contexts on the theory that the Authorization for the Use of Military Force gave it the authority to violate the Foreign Intelligence Surveillance Act (FISA) and other statutes. Specifically, Senator Leahy asked: “Did it authorize the opening of first-class mail of U.S. citizens?”
The Attorney General attempted to avoid answering the question, but ultimately stated: “Senator, I think that, again, that is not what is going on here. We are only focused on communications, international communications, where one party to the communication is al Qaeda. That is what this program is all about.”
You have already confirmed that you have authorized the NSA to conduct surveillance of communications without obtaining the court orders required by FISA. Your December 20, 2006, signing statement now suggests that you believe you have the authority to violate the law with regard to opening regular mail. The American people and Congress are entitled to know whether you have acted on that theory.
Please answer the following question: has your administration authorized any government agency to read Americans’ first-class mail without obtaining a search warrant, complying with the applicable court order requirements of the Foreign Intelligence Surveillance Act, or satisfying Postal Service regulations?
I look forward to your expeditious reply.
Russell D. Feingold
United States Senator